Research Handbook on the Sociology of Law 1789905176, 9781789905175

Table of contents :
Contents
List of figures
List of contributors
Introduction to Research Handbook on the Sociology of Law • Jiří Přibáň
PART I: SOCIOLOGY OF LAW BEYOND DISCIPLINARY BOUNDARIES
1 Legal theory and sociology of law • Joxerramon Bengoetxea
2 Sociological jurisprudence: tradition and prospects • Roger Cotterrell
3 Sociology of law and legal history • Chloë Kennedy
4 Sociology of law and legal anthropology • Fernanda Pirie
5 Ethnography and law in a transnational world: knowledge, power and discourse • Anne Griffiths
6 Sociology of law and economy • Iagê Miola and Sol Picciotto
7 Sociology of law and science • Emilie Cloatre and Martyn Pickersgill
8 Sociology of regulation • Bettina Lange
PART II: THE SOCIOLOGICAL CONCEPT OF LAW AND LEGAL SYSTEM
9 Sociology of the rule of law: power, legality and legitimacy • Jiří Přibáň
10 Sociology of the living law: exploring the other hemisphere of the legal world • Marc Hertogh
11 Sociology of legal culture • David Nelken
12 Sociology of the legal system • Richard Nobles and David Schiff
13 Sociology of legal consciousness and hegemony • Patricia Ewick and Susan Silbey
14 Sociology of legal subjectivity • Pierre Guibentif
15 Sociology of legal temporalities • Lyana Francot
16 Sociology of legal images • Linda Mulcahy
17 The sociology of legal professions • Lisa Webley
PART III: SOCIOLOGY OF LEGAL DISCIPLINES
18 Sociology of constitutional law and politics • Paul Blokker
19 Sociology of transnational constitutions • Chris Thornhill
20 Sociology of contract and property law • Sarah E. Hamill
21 Property as socio-legal institution, practice, object, idea • Antonia Layard
22 Sociological research in family law: international perspectives within the policy landscape • Mavis Maclean
23 Sociology of law and religion • Russell Sandberg
24 Sociology of health law • Atina Krajewska
25 Sociology of deviance and criminal law • Sharyn Roach Anleu
26 Sociology of housing law • Dave Cowan and Sally Wheeler
27 Sociology of labour law • Ralf Rogowski
28 Sociology of digital law and artificial intelligence • Håkan Hydén
29 Sociology of transitional justice: global and comparative perspectives • Stephan Parmentier and Camilo Umaña
Index

Citation preview

RESEARCH HANDBOOK ON THE SOCIOLOGY OF LAW

RESEARCH HANDBOOKS IN LAW AND SOCIETY Series Editors: Austin D. Sarat, Amherst College, Massachusetts, USA, Rosemary Hunter, University of Kent, UK This highly topical series addresses some of the most important questions and areas of research in Law and Society. Each volume is designed by a leading expert to appraise the current state of thinking and probe the key questions for future research on a particular topic. The series encompasses some of the most pressing issues in the field, ranging from gender, sexuality and the law, medicine and health, through to the impacts of punishment and social control and the sociology of law.  Each Research Handbook comprises specially-commissioned chapters from leading academics, and practitioners, as well as those with an emerging reputation and is written with a global readership in mind. Equally useful as reference tools or high-level introductions to specific topics, issues and debates, these Research Handbooks will be used by academic researchers, postgraduate students, practising lawyers and policy makers.   Titles in the series include: Research Handbook on Gender, Sexuality and the Law Edited by Chris Ashford and Alexander Maine Research Handbook on Socio-Legal Studies of Medicine and Health Edited by Marie-Andrée Jacob and Anna Kirkland Research Handbook on the Sociology of Law Edited by Jiří Přibáň

Research Handbook on the Sociology of Law

Edited by

Jiří Přibáň Professor of Law and Director of the Centre of Law and Society, School of Law and Politics, Cardiff University, UK

RESEARCH HANDBOOKS IN LAW AND SOCIETY

Cheltenham, UK • Northampton, MA, USA

© Jiří Přibáň 2020 Cover image: ‘Justice’ by Tomáš Císařovský All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020950138 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781789905182

ISBN 978 1 78990 517 5 (cased) ISBN 978 1 78990 518 2 (eBook)

02

Typeset by Westchester Publishing Services

Contents

viii ix

List of figures List of contributors Introduction to Research Handbook on the Sociology of Law Jiří Přibáň

1

PART I SOCIOLOGY OF LAW BEYOND DISCIPLINARY BOUNDARIES 7

  1 Legal theory and sociology of law Joxerramon Bengoetxea   2 Sociological jurisprudence: tradition and prospects Roger Cotterrell

19

  3 Sociology of law and legal history Chloë Kennedy

31

  4 Sociology of law and legal anthropology Fernanda Pirie

43

  5 Ethnography and law in a transnational world: knowledge, power and discourse Anne Griffiths

54

  6 Sociology of law and economy Iagê Miola and Sol Picciotto

66

  7 Sociology of law and science Emilie Cloatre and Martyn Pickersgill

81

  8 Sociology of regulation Bettina Lange

93

PART II THE SOCIOLOGICAL CONCEPT OF LAW AND LEGAL SYSTEM   9 Sociology of the rule of law: power, legality and legitimacy Jiří Přibáň 10 Sociology of the living law: exploring the other hemisphere of the legal world Marc Hertogh v

110

124

vi  Research handbook on the sociology of law 11 Sociology of legal culture David Nelken

136

12 Sociology of the legal system Richard Nobles and David Schiff

150

13 Sociology of legal consciousness and hegemony Patricia Ewick and Susan Silbey

163

14 Sociology of legal subjectivity Pierre Guibentif

177

15 Sociology of legal temporalities Lyana Francot

190

16 Sociology of legal images Linda Mulcahy

203

17 The sociology of legal professions Lisa Webley

215

PART III  SOCIOLOGY OF LEGAL DISCIPLINES 18 Sociology of constitutional law and politics Paul Blokker

230

19 Sociology of transnational constitutions Chris Thornhill

243

20 Sociology of contract and property law Sarah E. Hamill

258

21 Property as socio-legal institution, practice, object, idea Antonia Layard

271

22 Sociological research in family law: international perspectives within the policy landscape Mavis Maclean

283

23 Sociology of law and religion Russell Sandberg

295

24 Sociology of health law Atina Krajewska

304

25 Sociology of deviance and criminal law Sharyn Roach Anleu

318

26 Sociology of housing law Dave Cowan and Sally Wheeler

332

Contents  vii 27 Sociology of labour law Ralf Rogowski

346

28 Sociology of digital law and artificial intelligence Håkan Hydén

357

29 Sociology of transitional justice: global and comparative perspectives Stephan Parmentier and Camilo Umaña

370

Index

385

Figures

28.1 28.2 28.3

Legal decision making The knowledge field for sociology of law Algo norms in context

viii

362 362 363

Contributors

Joxerramon Bengoetxea, Professor of Jurisprudence, Faculty of Law, University of the Basque Country, Donostia-San Sebastian, and Director of the International Master in Sociology of Law (UPV/EHU), Oñati Institute, Spain Paul Blokker, Associate Professor, Department of Sociology and Business Law, University of Bologna, Italy Emilie Cloatre, Professor of Law, Kent Law School, University of Kent, United Kingdom Roger Cotterrell, Anniversary Professor of Legal Theory, School of Law, Queen Mary University of London, United Kingdom Dave Cowan, Professor of Law and Policy, Law School, University of Bristol, United Kingdom Patricia Ewick, Professor of Sociology, Department of Sociology, Clark University, United States of America Lyana Francot, Senior Researcher, Department of Legal Theory and Legal History, Vrije Universiteit Amsterdam, the Netherlands Anne Griffiths, Emeritus Professor, Anthropology of Law, School of Law, Edinburgh University, United Kingdom Pierre Guibentif, Professor, Dinâmia’CET_ISCTE, Lisbon, Portugal / Maison des Sciences de l’Homme Paris-Saclay, France Sarah E. Hamill, Assistant Professor, School of Law, Trinity College Dublin, Ireland Marc Hertogh, Professor of Socio-Legal Studies, Faculty of Law, University of Groningen, the Netherlands Håkan Hydén, Senior Professor in Sociology of Law, Department of Sociology of Law, Lund University, Sweden Chloë Kennedy, Senior Lecturer in Criminal Law, School of Law, University of Edinburgh, United Kingdom Atina Krajewska, Senior Birmingham Fellow, Birmingham Law School, University of Birmingham, United Kingdom Bettina Lange, Associate Professor in Law and Regulation, Centre for Socio-Legal Studies, University of Oxford, United Kingdom Antonia Layard, Professor of Law, Law School, University of Bristol, United Kingdom Mavis Maclean CBE, Senior Research Fellow, Department of Social Policy and Intervention, University of Oxford, United Kingdom ix

x  Research handbook on the sociology of law Iagê Miola, Professor of Law, Federal University of São Paulo, Brazil Linda Mulcahy, Professor of Socio-Legal Studies, Faculty of Law, University of Oxford, Director of the Centre for Socio-Legal Studies, United Kingdom David Nelken, Professor of Comparative and Transnational Law, Dickson Poon Law School, King’s College, University of London, United Kingdom Richard Nobles, Professor of Law, Department of Law, Queen Mary University of London, United Kingdom Stephan Parmentier, Professor of Sociology of Crime, Law and Human Rights, Faculty of Law, University of Leuven, Belgium Sol Picciotto, Emeritus Professor, Lancaster University Law School, United Kingdom Martyn Pickersgill, Professor of the Sociology of Science and Medicine and Associate Director, Centre for Biomedicine, Self and Society, University of Edinburgh, United Kingdom Fernanda Pirie, Professor of the Anthropology of Law, Centre for Socio-Legal Studies, University of Oxford, United Kingdom Jiří Přibáň, Professor of Law and Director of the Centre of Law and Society, School of Law and Politics, Cardiff University, United Kingdom Sharyn Roach Anleu, Matthew Flinders Distinguished Professor, College of Humanities, Arts and Social Sciences, Flinders University, Australia Ralf Rogowski, Professor of Law, School of Law, University of Warwick, United Kingdom Russell Sandberg, Professor of Law, School of Law and Politics, Cardiff University, United Kingdom David Schiff, Emeritus Professor of Law, Department of Law, Queen Mary University of London, United Kingdom Susan Silbey, Leon and Anne Goldberg Professor of Sociology and Anthropology, MIT Sloan School of Management, United States of America Chris Thornhill, Professor of Law, University of Manchester, United Kingdom Camilo Umaña, Faculty of Law, Externado University of Colombia, Bogotá, Colombia Lisa Webley, Chair in Legal Education and Research and Head of Birmingham Law School, the University of Birmingham, United Kingdom Sally Wheeler, Professor and Pro-Vice Chancellor, College of Law, Australia National University, Australia

Introduction to Research Handbook on the Sociology of Law Jiří Přibáň

Handbooks have become increasingly popular among academics and their publishers in the last two decades. They are an intellectual response to the growing complexity and sheer amount of research conducted in all areas of science, including sociology of law and socio-legal studies. They also are an effect of digitalisation of scientific communication, online accessibility and new ways of research dissemination. While monographs and edited books related to the specific research areas often struggle to draw attention, generalising and synthesising volumes bringing together different disciplines, theories and perspectives offer an overview and intellectual orientation in relevant areas of academic research. Handbooks on the most diverse themes and problems, from global constitutionalism and philosophies of law to the legal regulation of railway transport and virtual reality, have been published in recent years. Their popularity is particularly strong in interdisciplinary and transdisciplinary research of law. A researcher interested in ‘law and society’ or ‘law in context’ studies, therefore, can already use a number of collections, such as: the three volume Encyclopedia of Law & Society, edited by David S. Clark (2007); the extensive Law and Society ‘mini-library’ in four volumes, edited by Dave Cowan, Linda Mulcahy and Sally Wheeler (2014); The Handbook of Law and Society, edited by Austin Sarat and Patricia Ewick (2015); the Journal of Law and Society’s special supplement Main Currents in Contemporary Sociology of Law, edited by Jiří Přibáň (2017a); and, most recently, the Routledge Handbook of Socio-Legal Theory and Methods (Creutzfeldt, Mason and McConnachie 2020). Furthermore, handbooks on law and gender (Ashford and Maine 2020), race and class (Jackson 2015), science and technology (Brownsword, Scotford and Yeung 2016), medicine and health (Jacob and Kirkland 2020), crime and criminal justice (Tonry 2011) and other areas of national and transnational law (Halliday and Shaffer 2015) provide for the most detailed mapping of studies of law in social context. Numerous edited volumes on law and other social phenomena, and problems and themes, are being published in book series specialising in law and society studies by many academic publishers every year. Editing a specific handbook on sociology of law in this very rich, diverse, competitive and successful academic environment is a difficult task. It would make no sense to replicate important topics and problems of sociological research of law and socio-legal studies which already have been covered well by other handbooks, such as race, gender, class, and social or criminal justice and injustices. It would also be useless to focus on widely addressed transformations of contemporary positive law, such as the emergence of transnational legal systems and globalization of law and society. Indeed, no sociologist of law can ignore these topics and developments of subnational, transnational and global legal orders, and systems operating beyond the state. Individual 1

2  Research handbook on the sociology of law chapters in this Handbook document this shift in sociology of law and socio-legal research very well. However, they have become an integral part of any socio-legal research and, therefore, do not need to be addressed as specific problems, yet again. A research handbook on sociology of law, rather, needs to connect the discipline’s origins and genealogy with its current state and future ambitions. While avoiding artificial academic borders and distinctions between sociology of law, socio-legal, or law and society studies, it should outline both the sociology of law’s uniqueness and commonalities with other social and legal sciences. Finally, it should discuss its canonical knowledge and concepts as much as possible, and ways of moving beyond them. Indeed, the long tradition of sociology of law consists of many different theoretical schools, methodologies and intellectual perspectives also associated with ‘sociological jurisprudence’, ‘law and society’, ‘socio-legal studies’ and other academic labels. Differences between common law and civil law cultures play their role in different perceptions of sociology of law, its theoretical autonomy, and its impact on legal policies. While the common law legacy of Roscoe Pound’s sociological jurisprudence as a policy-oriented and critical analysis of positive law still finds its echoes in contemporary ‘law and society’ and ‘socio-legal studies’ approaches, sociologists of law in civil law cultures tend to emphasise the importance of doctrinal knowledge and, like Eugen Ehrlich and Georges Gurvitch a century ago, often continue to ambitiously perceive their academic discipline as the most general science and theory of positive law (Treviño 2008). These theoretical, conceptual and methodological differences surprisingly persist in contemporary sociological explorations of law in its local, national and transnational globalised contexts (Twining 2000; Hertogh 2009). Furthermore, the classic distinctions between living and legislated law or law in books and law in action are translated into jurisprudential notions of legal monism and pluralism (Přibáň 2017b, 3–5); societal processes of evolution, fragmentation and hybridization have become leading concepts of theories of legal globalization (Teubner 2012). In other words, the conceptual framework and distinctions established by the first generation of sociologists of law a century ago has become an intrinsic part of general theories and jurisprudence of contemporary law. Today, sociology of law prevails as both a general theory of law and a specific set of empirical methods and practical tools that examine societal operations of different legal systems, orders and regimes. This Handbook on sociology of law, therefore, aims at mapping the discipline in its historical, theoretical and methodological contexts, and as a complex social scientific research of positive law. It is composed as a set of inquiries into the current state of sociology of law as a unique academic discipline which, nevertheless, flourishes due to its strong capacity of interdisciplinary engagement and links to other scientific concepts, methodologies and research fields. Reflecting on recent publications in sociology of law, law and society, socio-legal studies and interdisciplinary research of law, this Handbook revisits the specific role of sociology of law, its disciplinary boundaries and its relationship to both legal and social sciences. Individual chapters in the first part focus on the sociology of law’s relationship with other academic disciplines, such as legal theory and jurisprudence, anthropology, ethnography, history, economics, or science. Joxerramon Bengoetxea explores close links between legal theory and sociology of law and different uses of sociological theories and knowledge

Introduction  3 by legal theorists. Roger Cotterrell revisits the concept of sociological jurisprudence and transforms its traditions into a new theoretical enterprise, reformulating the position of sociology of law and its relationship to both legal and social sciences. Chloë Kennedy then analyses another strong link, namely between the sociology of law and legal history and their respective methodologies. Similarly, Fernanda Pirie describes commonalities and similarities between sociology of law and legal anthropology. Close to anthropology, ethnographic studies of law have a long tradition and Anne Griffiths rethinks it in the context of sociological, even philosophical, conceptualisations of power, discourse and knowledge. The first part of the Handbook subsequently continues with sociological inquiries into the relationship between law, power and hegemony constituted by other social systems. While Iagê Miola and Sol Picciotto deal with power and inequalities constituted by the economic system, Emilie Cloatre and Martyn Pickersgill explore different forms of communication and interaction between law and science. The opening part then ends with Bettina Lange’s analysis of regulation studies and the role of sociology of law in this field of interdisciplinary research. In the second part, the Handbook revisits key sociological inquiries into positive law concepts, such as the rule of law, living law, legal systems, legal culture, legal consciousness, subjectivity, temporality, legal images and professions. This framework demonstrates the indispensability of sociology of law and its methodology in legal science as much as the impossibility to reduce it to the set of empirical methods supporting either legal policies and jurisprudence, or their criticisms. Individual chapters create a complex fabric of both the general and specific sociological meaning of positive law, its structure, organisation and function. Jiří Přibáň taps into the rule of law traditionally dominated by legal and political theorists and philosophers to highlight sociological origins and contexts of legality and legitimacy. Marc Hertogh explores the legacy of Ehrlich’s concept of living law as ‘the other hemisphere of the legal world’. David Nelken revisits the concept of legal culture and its importance for sociological research of law. Richard Nobles and David Schiff use the social systems theoretical perspective to examine and reformulate the concept of legal system. Patricia Ewick and Susan Silbey examine the relationship between legal consciousness and hegemony, and thus link general issues outlined in the first part of the Handbook to the more specific problems of power and hegemony evolving in the system of positive law. Pierre Guibentif then formulates a powerful sociological theory of legal subjectivity, and Lyana Francot engages with the systemic conceptualisations of time in law and society. Drawing on the semantics of law, Linda Mulcahy’s chapter is closely connected to Guibentif and Francot’s analysis of the legal constitution of subjectivity and temporality because it offers a sociological analysis of the constitution of different legal images. The second part of the Handbook is then completed by another internal construct of the legal system, namely legal professions examined by Lisa Webley. Following these sociological explorations of the concept of law and legal system, the final part of the Handbook engages with sociological perspectives applicable to the specific legal disciplines and different areas of positive law. Contributors do not focus on particular jurisdictions and legal cultures and their comparisons. Instead, they outline general concepts, themes, problems and trends in their social and legal contexts. This part opens with two chapters dealing with the sociology of constitutional law. While Paul Blokker offers a detailed sociological assessment between the systems of law and politics, including the differences between legal and political science, Chris Thornhill

4  Research handbook on the sociology of law presents a rapidly expanding field of sociology of transnational constitutions and global constitutionalism. In the following two chapters, Sarah E. Hamill offers an outline of sociological conceptualisations of contract and property law, and deals with current methodological problems as much as future challenges for this particular field of sociology of law, while Antonia Layard examines the concept of property in its socio-legal context and combines it with the perspective of post-colonial studies. These explorations of contract and property are followed by three chapters that focus on the closely connected institutions of family and religion and the integrity of human life. While Mavis Maclean reflects on the specific evolution of international collaborative networks of sociologists of family law, Russell Sandberg examines the historical and intellectual development of law and religion studies and its sociological dimension. Atina Krajewska’s contribution is closely related to these chapters because it explores theoretical and ethical issues of another extremely dynamic and fast developing field, namely health law and its globalization. The following three chapters engage with problems of social justice and injustices in the realm of criminal law, housing law and labour law. Sharyn Roach Anleu revisits the classic concepts of deviance and crime and comments on its theoretical, sociological and social injustice dimensions, including gender discrimination and the process of deviantisation. Dave Cowan and Sally Wheeler look at the history and sociology of housing law and interdisciplinarity of this area of research. Ralf Rogowski then contributes by sociologically assessing a branch of law historically evolving by societal and political regulation of contractual freedom, namely labour law, its institutional developments and globalisation. The final two chapters of this volume deal with the most general and acute issues of legal regulation, namely artificial intelligence and transitional justice. These two areas of research may look very different, yet they illuminate the global dimension of contemporary law as much as the need to respond to its challenges, injustices and contingencies by innovative forms of sociological and interdisciplinary research. Håkan Hyden presents a sophisticated analysis of artificial intelligence and digitalisation, and possible legal responses to these societal developments. Similarly, Stephan Parmentier and Camilo Eduardo Umaña Hernández address the ‘eternal’ problem of political crimes and injustices, yet their response also searches for innovative sociological explanations and clarifications in the context of our globalised social and political experiences. The reader can see that the contributors to this Handbook represent a collective of scholars fairly balanced in terms of gender, age and academic position, bringing together young talents as well as leading scholars in sociology of law. Although the majority of the contributors are based at universities in the United Kingdom, there are scholars from other countries and continents participating in this project who illuminate the current state, rich history, intellectual traditions and innovative responses to the future challenges of sociology of law. As a scholar of law graduating from Charles University in Prague, and having research experiences in Africa, the Americas and Central and Eastern Europe, I wanted to see more colleagues from those and other places contributing to this volume, but my efforts did not fully materialise for various reasons. However, this particular failure will hopefully be turned into future successes and more handbooks on sociology of law demonstrating the growing global body of knowledge and community of scholars working in this particular

Introduction  5 academic discipline. In other words, the history and story of sociology of law is to be continued . . . Finally, I want to thank the Czech artist Tomáš Císařovský for giving permission to use his painting Justice on the Handbook cover. It dates back to 1992 when the 1989 revolutionary illusions started disappearing and people realised how fragile and even obscured, yet indispensable the ideal and image of justice could be in modern complex society.

REFERENCES Ashford, Chris and Alexander Maine (eds). 2020. Research Handbook on Gender, Sexuality and the Law. Cheltenham: Edward Elgar Publishing. Brownsword, Roger, Eloise Scotford and Karen Yeung (eds). 2016. The Oxford Handbook of Law, Regulation and Technology. Oxford: Oxford University Press. Clark, David S. (ed). 2007. Encyclopedia of Law and Society: American and Global Perspectives. 3 vols. Thousand Oaks, CA: Sage. Cowan, Dave, Mulcahy, Linda and Sally Wheeler (eds). 2014. Law and Society. 4 vols. Oxford: Routledge. Creutzfeldt, Naomi, Marc Mason and Kirsten McConnachie (eds). 2020. Routledge Handbook of Socio-Legal Theory and Methods. Oxford: Routledge. Halliday, Terence C. and Gregory Shaffer (eds). 2015. Transnational Legal Orders. Cambridge: Cambridge University Press. Hertogh, Marc. 2009. Living Law: Reconsidering Eugen Ehrlich. Oxford: Hart Publishing. Jackson, Shirley A. (ed). 2015. Routledge International Handbook of Race, Class, and Gender. Oxford: Routledge. Jacob, Marie-Andrée and Anna Kirkland (eds). 2020. Research Handbook on Socio-Legal Studies of Medicine and Health. Cheltenham: Edward Elgar Publishing. Přibáň, Jiří (ed). 2017a. Main Currents in the Contemporary Sociology of Law. Special Supplement of the Journal of Law and Society 44(S1). Přibáň, Jiří. 2017b. “A Sociology of Legal Distinctions: Introducing Contemporary Interpretations of Classic Socio-legal Concepts”. In Jiří Přibáň (ed). Main Currents in the Contemporary Sociology of Law. Special Supplement of the Journal of Law and Society 44(S1), 1–18. Sarat, Austin and Patricia Ewick (eds). 2015. The Handbook of Law and Society. Oxford: Wiley. Teubner, Gunther. 2012. Constitutional Fragments: Societal Constitutionalism and Globalization. Oxford: Oxford University Press. Tonry, Michael (ed). 2011. The Oxford Handbook of Crime and Criminal Justice. Oxford: Oxford University Press. Treviño, Javier A. 2008. The Sociology of Law: Classic and Contemporary Perspectives. New York: Routledge. Twining, William. 2000. Globalisation and Legal Theory. Cambridge: Cambridge University Press.

PART I SOCIOLOGY OF LAW BEYOND DISCIPLINARY BOUNDARIES

1.  Legal theory and sociology of law Joxerramon Bengoetxea

INTRODUCTION – SOCIOLOGICALLY INFORMED JURISPRUDENCE Sociology of law and jurisprudence (the general theory and the philosophy of law) are in uneasy tension. Sociological accounts of law as an institution provide legal practice and legal theory with insight into law’s social processes, and the social sciences help jurisprudence examine if its assumptions are grounded in the reality of law (Galligan 2006, 18). Yet despite socio-legal scholars’ endeavours to integrate legal and sociological ideas, law and sociology remain apart. Sometimes these disciplines ignore each other, somewhat minding their own business. Banakar (2009, 71) wonders why prominent philosophers of law, such as Dworkin, regard sociological and historical studies of law, which view the law externally as ‘perverse’, while failing to recognize that internal studies of the law which ignore questions about the social properties of the law and the external manifestations of the law are also ‘impoverished and defective’. Sometimes, however, sociology of law and jurisprudence communicate and rely on each other. This chapter explains the tension, finding a different approach to the is/ought distinction in each discipline. To even out that tension, law is understood, following MacCormick (2007), to be a process of institutionalised normative communication, and institutional theory of law is proposed as the conceptual starting point for the sociology of law. Kornhauser (2017) identified five components that any comprehensive theory of law should provide: first, the nature of law, distinguishing law both from other normative systems such as morality and religion, and social conventions such as etiquette, but also from other domains of practical reason, utility, coercion, interests, power and politics; second, the grounds of law, the conditions for a proposition of law to be true or valid; third, the nature of the reasons for action that law provides; fourth, the value of legality; and fifth, a normative theory of adjudication, a theory of how judges ought to decide cases. This chapter deals with these five components. Sociology of law will complement the first and third and provide empirical counterpoints to the fourth and fifth components, while neglecting the second item as idealistic1 or not realistic. Indeed, ‘a realistic theory of law is built on observations about the past and present reality of law rather than on intuitions, thought experiments, musings about all possible worlds, claims about self-evident truisms, and other non-empirical modes of analysis frequently utilized by analytical jurisprudents’ (Tamanaha 2017, 2). 1

  This neglect of legal idealism frees sociologists from making assumptions about the sources of law and the nature of legal reasoning, enabling them to identify the sources of law in social formations and associations which have come about and exist independently of the state and to adopt a bottom-up and critical perspective on law, regarding social interactions and relations and perceptions of the law as the primary focus of their study (Banakar 2009, 66).

7

8  Research handbook on the sociology of law Tamanaha claims ‘law involves multiple social-historical phenomena that have taken on different forms and functions in different times and places and, therefore, cannot be captured by a singular definition of law’ (2017, 38). While accepting the diversity of legal phenomena and even embracing (a mild form of) legal pluralism, this chapter takes up his challenge in order to defend a ‘singular definition of law’ as an institutional normative order and as a suitable conceptual approach to law, valid for both jurisprudence (general theory and philosophy of law) and sociology of law across cultures and history, and thus universally applicable although, admittedly, my sources are mostly European. This approach to the theory and sociology of law, sketched by the late Neil MacCormick in 2007, takes the norm-user’s perspective and is ‘realistic’, without outright rejecting law’s dual nature (Alexy 2010). Exploring the conceptual foundations for sociologically sound jurisprudence, and inspired by neighbouring sub-disciplines like the sociological theory of law or sociological jurisprudence,2 this chapter puts forward an institutional theory of law that accounts for the wealth of legal phenomena and provides a working concept of law for sociology. It discusses key issues in the tension between sociology of law and jurisprudence and revisits the is/ought distinction as it applies to sociology and jurisprudence, considering legal norms and processes as the institutional elements to test the two disciplines (Ferrari 2006, 72). Norms operate in communicative spaces, sometimes monolingual sometimes multilingual, as patterns for action that influence peoples’ expectations, social actions and the settlement of social conflicts. Sociology of law thus contributes to jurisprudence, distinguishing law from other normative systems and legal norms from other types of norm.

NORMATIVITY IN SOCIOLOGY OF LAW AND IN JURISPRUDENCE This section discusses the tension between sociology of law and jurisprudence; the is/ ought divide as it applies to sociology and theory of law and a minimal working concept of law and legal norms as distinct from other normative systems or other types of norm. Normativity is expressed through norms, institutions and processes and, while semiotic understandings of normativity see norms operating in communicative spaces, sociological understandings see them as patterns for action that influence peoples’ expectations, social actions (behaviour) and the settlement of social conflicts. These descriptive-interpretative approaches contrast with internal legal discourses; at best analytical or hermeneutic, at worst dogmatic or doctrinal.

2

  Sociological jurisprudence, linked with the sociology of law, is from an earlier date than the Law and Society movement. It is interested in legal theory and legal education and views the law as experienced by legal practitioners and actors. Ehrlich, Gurvitch, Petrazycki and Pound called on legal research, legal education and judicial decision-making to adopt the methods and insights of social sciences to amend the conceptual formalism of analytical jurisprudence and its neglect of empirical facts, and of the role of social forces in creating the legal order and shaping legal behaviour (Banakar 2009, 67–8).

Legal theory and sociology of law  9 Is and Ought in the Sociology and Theory of Law The separation of sociology of law and jurisprudence as disciplines is largely based on the is/ought distinction; facts and values (norms) being separate dimensions. Enlightenment philosophers David Hume and Immanuel Kant warned of the categorical mistake in deriving an is from an ought or an ought from an is; a naturalistic fallacy (Moore 1903, 13). Along this radical separation of experience domains, the sociology of law would be concerned with is and jurisprudence with ought. The analytical jurisprudence of legal positivists has become increasingly abstract, specialized and narrow, disregarding social theory or history (Tamanaha 2017, 2) – disregarding the is. Legal positivism, like natural law, avoids discussing the constitution of the ‘social’ (Banakar 2009, 60). For positivist jurisprudence, is and ought are radically and rigidly apart (Zagrebelsky 1995, 118). Thus, Hans Kelsen (1911) adopted a transcendental theory of legal norms on the basis of a chain of validity that ultimately relied on a hypothetical ought, the Grundnorm. But in order to study the ought scientifically, as an is, norms were treated as normative propositions. Sociology was a disturbing noise in his pure theory of norms; as elements belonging to the factual sphere, the human activities generating law are the concern of sociology and have no part to play within a ‘pure’ theory of law (Delacroix 2006). Equally aware of the fallacy, Vincenzo Ferrari, a prominent professor of sociology of law, recently warned that the danger of functionalism lies in confusing is and ought (Rivaya 2019). By contrast, sociology of law tends to bridge and blur the is/ought distinction. Niklas Luhmann (1972) developed a sociological theory of the legal system on the basis of the binary category recht/unrecht (lawful/unlawful) as they operate in society, seen as a network of systems and acts of communication having social meaning. Norm-based thinking is a method through which law distinguishes itself from non-law, deciding cases on an all or nothing basis, which in principle leaves little or no space for general moral or sociological considerations. But norm-based thinking is also a communicative process through which the norms are interpreted and applied in various social contexts (Luhmann 1985). Here, is and ought are in permanent dialogue. This method or approach reflects law’s attempt to integrate, rationalize and confine complex social processes to the conceptual boundaries of legal norms. Law is a highly rationalized rule-based activity; a system of rules, norms, decisions, doctrines and principles designed to guide action, enable legal analysis, and justify decisions in an ‘objective’ manner. This image of law pervades juristic discourses and creates the cornerstone of a legal education devoted to the reading of cases and law reports, and searching for, interpreting and applying legal rules (Banakar 2009, 60). Jurisprudence and sociology of law could very well take each other’s teachings and perspectives into account and use ‘sociology’s looking glass to see beyond the self descriptions of law and the legal profession’ (Banakar 2009, 64). But this is rare. This separation of sociology of law and jurisprudence as disciplines has as much to do with academic competition and fields of research, the construction and distribution of ‘scientific stakes’ in academia (Bourdieu 1975); as with epistemic conflicts, their respective theoretical make-up is the way they approach the is/ought divide. Legal positivism tries to provide an adequate, internal account of law as it is, in contrast to how law ought to be; this being the interest of natural law. But positivism aims at grasping the is analytically, by clarifying the basic concepts and frameworks through which we

10  Research handbook on the sociology of law observe, describe and understand law, rather than through an empirical investigation of the practices and experiences of those who produce and reproduce the law and its institutions. It deliberately ignores the life of the law and treats normativity as its data: Kelsen’s pyramid-shaped legal system based on the chain of validity of legal norms (Kelsen 1960) is the climax of a positivist legal science that avoids the naturalist fallacy all the way to the Grundnorm, and pretends to be scientific, a genuine Rechtswissenschaft (Jung 2020). In natural law as well, at least in the most systematic and coherent versions of iusnaturalism, ‘no value can be deduced or otherwise inferred from a fact or set of facts’ (Finnis 1980, 66). Finnis’ system of values and rights generates an order or system in the face of value-pluralism and social co-ordination problems by the ‘induction’ of indemonstrable first principles of practical reason (that is, of natural law), like the principle that truth is worth pursuing (Finnis 1981, 268). The ‘natural law method’ of working out the (moral) ‘natural law’ from the first (pre-moral) ‘principles of natural law’ also aims to respect the is/ought divide and reinforces the claim to the autonomy of the law (Finnis 1980, 102–3). By contrast, legal realism, critical legal studies or alternative use of law have shown some interest in the ways normative structures are created and recreated, enacted and reconstructed and, in their relation to conflict and power, they have bridged the is/ought divide.3 Sociology of law, by title, by birth and by definition, dissolves this divide, and thus potentially clashes with the modern Kelsenian philosophy of law, but the concept of norms helps them to conflate. The Sociolegal Concept of Norms The concept of norms is accepted within both the prescriptive legal field and the descriptive social sciences (Hyden and Svensson 2008, 137). Norms can be seen as objects, data containing messages – speech acts – about what ought to be. Norms are individuals’ understanding of surrounding expectations regarding their own behaviour, so that when an individual’s attitude deliberately conforms to the norm we can infer that the norm has been internalised by the individual. Action in conformity (or not) with the norm has cognitive, volitional and behavioural components. Sociology of law explains normative structures from their factual (empirical) context. Durkheim avoided breaking Hume’s law by claiming that social facts such as legal norms are things or data, a realm of the is. For Durkheim, norms are facts that can be studied as they interact with other facts in society. They are data that can be viewed through their signs. In that sense they are objective and external: they exist in a social context and are socially reproduced, whereas the ought is linked to an individual, internal level of the person and falls outside any sociological or social analysis. Thus, as norms bear features of both the ought and the is, Hyden and Svensson claim that, through norm analysis, we can derive the ought of the legal system from the is of society (2008) – a Durkheimian claim. For Durkheim the model or representation that society (the group) imposes on an individual about due and expected behaviour (what ought to be done) is a social fact.

3   American legal realists are ‘acknowledged as forerunners of the Law and Society Movement, Socio-Legal Studies and other empirical approaches’ (Twining 2019, 165).

Legal theory and sociology of law  11 Guiding human conduct is what norms do as a form of communication, and this is a social phenomenon that works as a norm for norm-givers and norm-users, and for those engaged in the language game of normativity (Wittgenstein 1953, 23), but appears as a fact for the external observer as a given, as données or data: the conducts of the users, in conformity with the norms they recognise, are facts to the observer (Perrin 1990). This transpersonal recognition of the norms is linked to the development of the feeling of justice, Piaget’s development psychology, to be found in all domains of practical reason. The social norm is that which is recognised as just or fair in a social group. For Weber too, the norm is an instrument of communication that becomes a mental representation as a consequence of a process of socialisation. The norm addressee receives the normative message and recognises the norm in the message: the expectation of due behaviour it contains becomes the object of the norm. ‘One cannot play bridge without knowing and accepting the rules of bridge’ (Perrin 1990, 134). The game of bridge has an institutional reality by reference to the norms that regulate the game. Existence is not brute or physical, as in paper cards with figures, numbers, colour or ink markings, but rather institutional. Legal and social institutions are also institutional facts. Searle’s idea of institutional fact (1969) revisits the ontology of norms, a domain of reality, a language game that only makes sense by reference to norms that constitute that reality. Physical facts and relationships are then understood as humanly meaningful, imputable to shared human norms of conduct (MacCormick 2007, 31). Unlike natural entities, social entities such as institutions are mind-dependent. For example, the fact that a five euro bill is money and not merely paper depends on the collective belief that it can be used as a medium of exchange and on rules that constitute their value and regulate their operation. By contrast, a molecule of water is water irrespective of anyone’s belief (Searle 2010). In this sense, all norms recognised by a given group in a given domain constitute a system and the norm’s belonging to that system, structured in institutions fulfilling some social or legal function, is one of the explanations of the reinforced feeling of the duty to obey, which is consequential to the fact that the rule is accepted as being part of that order or system (Perrin 1990, 136). In other words, ‘the system, once accepted by participants, commits them to acceptance of facts within the system’, maybe not of all the norms belonging to that system, but of the system as a whole (Searle 2010, 102–3). It will be precisely this fact, obedience or acceptance that will integrate one of the most influential positivist definitions of law, one that focuses on the law giver and the sovereign rather than that of law users. The view of law as the commands of the sovereign backed by sanctions is one of the dominant versions of legal positivism. Austin’s ‘main idea, that law is a matter of historical decisions by people in positions of political power, has never wholly lost its grip on jurisprudence’ (Dworkin 1986, 4). Its simplicity attracts practitioners and academics alike. In a nutshell, the command is the expressed wish that something be done, laid down by a sovereign who receives habitual obedience from the bulk of the population, and who has the ability to impose an evil or a sanction if that wish is not complied with. The ‘sovereign’ is a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but does not habitually obey any other (earthly) person or institution (Austin 1832; Bix 2018). Here, jurisprudence draws from sociologically observable facts, and sociology depends on internalised norms or expectations. The is/ought divide fades away in Austin.

12  Research handbook on the sociology of law The Sociological Dimension: The External and Internal Point of View The sociological dimension of legal theory is taken for granted in three elements of Austin’s definition: (i) the sovereign – one who receives habitual obedience from the bulk of the population and does not habitually obey any other earthly person or institution; (ii) the sovereign’s ability to impose an evil; and (iii) the possibility of ascertaining whether the wish or the command is complied with or not. The three are external factors that call for an empirical enquiry: does a given person or an institution, as a matter of fact, receive habitual obedience? How and where is this obedience identified or observed? How much of the population makes the bulk of the population? What is the nature of noncompliance with the commands of the sovereign, considering possible conflicting sources of popular consciousness?4 Who certifies non-compliance and how? How is the system of evil operated by the sovereign? These questions deal with external regularities and should call for an empirical enquiry, but they also have an internal dimension and exploring it calls for a qualitative methodology. As Hart observed (1961, 55), the habit of obedience, the regular uniform behaviour, which an observer could record, is the external aspect of a rule. But Austin’s definition makes several theoretical and conceptual assumptions about the internal aspect as well; the reason to obey is the fear of the sanction – the imposition of sanctions is sufficiently credible to the bulk of the population to ensure compliance. These assumptions involve the internal point of view of the population: people avoid evil; people will comply in order to avoid evil; people believe that the infliction of evil is a credible scenario in case of non-compliance; and people believe that non-compliance will not go unnoticed, so they had better comply. The identification of these internal factors also calls for an empirical enquiry, but not of the type that looks into regularities and correlations. The meaning and opinions about the law, people’s reasons to follow or break the law and legal consciousness need to be explored. Max Weber built on the idea of coercion (the sanction) and on the meaning of following a rule, upon which HLA Hart developed the internal point of view. Lacey (2004) recalls that Hart was indebted to Weber for his internal account of legal rules and had read Economy and Society, but never acknowledged his debt. Weber’s sophisticated definition of the state echoes Austin’s view of the sovereign’s ability to impose an evil. For Weber (1978, 904), the state (successfully) ‘claims the monopoly of the legitimate use of physical force within a given territory’. For Searle too, the feature distinguishing government (state) law from other social institutions is the constant threat of physical force (Searle 2010, 171). Under the coercive views, law is to be found in the commands of the sovereign (Austin) or in the conditions under which physical force can be used legitimately in a territory, in a logically clear and internally consistent, gapless system of rules governing all conceivable fact situations (Weber 1978, 656), or in the rights and guarantees that citizens have as protection from such use of

4   For Eugen Ehrlich (1936), living law emerges from different social groups, and in each of these groups psychological pressure is exerted on individuals to comply with the norms of the group (Hertogh 2009).

Legal theory and sociology of law  13 force. Indeed, for Dworkin, ‘law insists that force not be used or withheld, no matter how useful, beneficial or noble the ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified’ (1986, 93). Taking a distance from coercive views, Hart explored The Concept of Law (1961) and found the grounds of law in the acceptance by the community as a whole of a fundamental master rule of recognition that assigns to particular institutions the authority to make law, which relates to social conventions. The identification of such conventions is a matter of sociological research, but Hart’s theory also takes sociological enquiry for granted and postulates that actors’ critical reflective attitude toward the rules is not ultimately a matter of internal feelings, but of how the group regards its own behaviour (1961, 88), and this establishes a connection with normative language: ought, must, should, right and wrong (1961, 56). This allows him to distinguish between ‘feeling obliged’ and having an obligation, according to this critical reflective attitude shared by the group (1961, 86). For many, The Concept of Law is the most important work of twentieth century analytical jurisprudence (Douglas-Scott 2013, 40), but in spite of pretending to deliver ‘a descriptive sociology’ Hart only describes the use of language: social situations or relationships are related to the standard uses of relevant linguistic expressions in a social context. Such “language turn” points to the relevance of semiotics. The semiotic dimension: ‘It takes two to make a truth’ (Austin 1950, 124) The commands of the sovereign are expressed in a language: take the language out and the whole system collapses. This necessarily implies a situation of linguistic communication where the wish of the sovereign needs to be understood by the bulk of the population. Words and commands are used to get things done, but Austin overlooked this point. The presence of language in the background was largely ignored in successive jurisprudential discussions. It took another writer, John Austin, 100 years later, to develop this dimension of linguistic communication. The ‘language turn’ brought about by Oxford analytical philosophy was incorporated into the law largely by H.L.A. Hart, who built The Concept of Law on the criticism of Austin’s command theory. John Langshaw Austin (1911–1960), a colleague of Hart’s in Oxford, developed this dimension of linguistic communication. He could have analysed Austin’s commands as a situation of communication, as performative, perlocutionary acts (1962). The messages emitted by the sovereign are not only pieces of information, they are ‘commands’ and threats addressed to the population for it to do, or not do, something. J. L. Austin was sensitive to: (i) the specific features of situations upon which we base one or another more fine-grained appraisal of uses of sentences, and (ii) the details of the participants in that and other forms of transaction between word and world (Longworth 2017). Norms are messages, illocutionary speech acts emitted by a source and directed to addressees in a shared speech situation – semiotic circle or discursive space sharing codes of meaning, word and world, and extracting from them similar information (Ferrari 2006, 69). From the sociolinguistic speech act perspective, law is a process of communication generating order in an institutional environment: a norm-giver emits or directs norms to the addressees, the norm-takers, in a given jurisdiction, who are the bulk of the population.

14  Research handbook on the sociology of law But why not understand law as the self-government of the citizens rather than the command of a sovereign to subjects? Norm-givers and norm-addressees (norm-users) would then merge as the same self-governing or autonomous agents. If it takes two to make a truth, it takes two to make a norm as well. This alternative focus adopts the norm-user perspective rather than that of the norm-giver. The institutional approach to law and normativity (MacCormick 2007) accepts law is about normative communication, generating order in an institutional environment. The ‘sovereign’, the norm-giver, also has to follow the norms about making new norms, and thus becomes a norm-user bound by the law (secondary rules). When applying and stating the law, judges also follow previously set norms. Herein lies the essence of the rule of law. The community of users then becomes the focal point, in law as in language, and this enhances individuals’ access to law making and autonomy; that is personal empowerment (Bengoetxea 2015). Law, normativity in general, is very much like language games in that the community of users determines the linguistic practice and the understanding of the norms. An authority may very well prescribe correct ways of speaking but if the users do not follow, the stipulated language will become merely academic. Law is not only about norm and regulation, it is also about dispute resolution and conflict, and conflict emerges where normative expectations are not met and where behaviour does not conform to the norms. Here too, it takes two to make a conflict. This can happen when norms are being discussed, because their existence, validity or meaning are contested. A failure of linguistic communication can account for the contested meaning. A disagreement with the norm can also take place, and this may bring about a new form of communication or discourse – debating the norms. The resulting situation may be a frustration of normative expectations which may change with the new norms and, sometimes, result in a loss of trust in normativity within the social group. But if conflict and norm change are successfully managed, a new form of order may emerge and trust in institutions may be reinforced. The institutional settings or contexts differ greatly, but the essence of normative communication remains the same: generating and fulfilling normative expectations on behaviour in a community of users is socially meaningful. It is also socially valuable; to the extent that the users share and satisfy such expectations, trust will follow, and the rule of law principles will reinforce mutual trust in the social group, and this trust is enhanced when norm-users engage in normative communication in a language that they share (Bengoetxea 2011). For the more like others you are, the more inclined you will be to trust them (Fukuyama 1995). Norm-givers (message issuers) and norm-addressees (message recipients) normally find themselves in different spatial and temporal coordinates; communication is not immediate, but they share an institutional setting, a social space, a context, a language and a (legal) culture where norm-making and norm-following are socially valuable institutional practices: in short, the social capital of civil society (Putnam 1993). Herein, we meet the essence of self-government, home rule, or self-determination. In a democratic polity, law is then better understood as the re-enactment of the citizens governing themselves directly or indirectly through representation. In multilingual, highly pluralistic and polycentric polities like the EU, this process of representation, taking place in over 23 different languages, where the citizens elaborate, receive and follow the norms, is extremely complex. It is supported by a wealth of institutions.

Legal theory and sociology of law  15

A CONCEPT OF LAW AS AN INSTITUTIONAL NORMATIVE ORDER We need to be very careful about making universal claims when putting forward a concept of law: its defining features – sense or intension – have to capture the many different manifestations of the legal phenomena historically and geographically, reference or extension. An over-inclusive reference extends to phenomena like morality or religion, whereas an under-inclusive reference excludes phenomena like custom or self-regulation (Tamanaha 2017, Ch. 2). Following this advice, we should approach the theory and concept of law cautiously, progressively and cumulatively. Cautiously, by not making sweeping generalisations; progressively, analysing each of the necessary features step by step; and cumulatively, where each feature adds something necessary. MacCormick (2007) defined law as an ‘institutional normative order’, a short but rich concept of law. Its three components or explanans – norms, order and institutions – need to be conceptualised without reference to the explanandum, law, in order to avoid redundancy and circularity. The fundamental presupposition of this concept is that law belongs in the domain of practical reason; the general human capacity for resolving, through reflection, the question of what is to be done and how one contributes to what collectively ought to be done when faced with a set of alternatives for action. Practical reason is concerned with matters of value, of what it would be desirable to do, assessing and weighing reasons for action (Wallace 2018). Norms, rules or standards of behaviour recognised in a social group are powerful reasons for action. From a sociological point of view, an institution is any type of normative set structuring a field of social action in a lasting manner (Ferrari 2006, 139). The field of social action is the subject matter of the institution: family, religious practices, games, economic value, goods, power, education, health and so on. The lasting existence in society is the consequence of the normative set providing stability and order: ‘Institutions by definition are the more enduring features of social life.’ (Giddens 1984, 24). Institutions thus help conciliate social stability and individual free will, recalling Aristotle’s view of man as a political animal. The structuring and the normative set go together and relate back to the concept of norms, which constitute social reality. There are formal features – a status with deontic relations giving rise to rights, duties, obligations, requirements, permissions, authorizations, entitlements, prohibitions and powers – that the diverse human institutions – churches, universities, money, hospitals, schools, banks, ski clubs, marching bands, nation states or governments – have in common, enabling them to function in human life (Searle 2010, 123). These formal features, bearing the form ‘X counts as Y in context C’, rely precisely on norms: they provide structure to the institutions and they involve social and collective recognition of the broader system or order where they belong to create deontic relations. Institutions bring together categories of norms; for example, contract, property, marriage, personality, trusts and so on, but they are themselves the creation of norms, namely constitutive rules. Social institutions like family, authority, money and the market acquire a higher level of complexity, an enhanced double institutionalisation (Bohannan 1965), when they turn into legal institutions where the norms that constitute, regulate and change them are themselves the object of further institutions. Norms in highly institutionalised settings are structurally (systemically) more complex and sophisticated than norms

16  Research handbook on the sociology of law in less institutionalised settings such as custom or moral standards. Legal norms are highly institutionalised forms: ‘legal conceptualisations function as action guides for an idealised norm-subject’, a zoon politikon or homo juridicus using ‘institutional information about legal arrangements both to set up and to stabilise relevant normative information’ (MacCormick 1992, 12). This stabilisation function of institutions can also be seen in Schelsky (1980), Luhman (1985) and Weinberger (1991).5 Indeed, the institutional theory of law advocated in this chapter, as facilitating the cross fertilization between jurisprudence and sociology of law, which was sketched by MacCormick and Weinberger (1986), ‘was profoundly influenced by a general sociological theory of institutions and legal realist ideas of law as a means of social integration and change and as a normative reflection and institutionalisation of human political and social imagination’ (Přibáň 2015, 98). But, from the point of view of practical reason too, law involves enhanced institutionalisation: ‘the law exists to improve people’s conformity with reasons that already apply to them’ (Gardner 2018, 77), and this raises the issue of justice, upon which we conclude.

THE DIMENSION OF JUSTICE ‘Justice is the first virtue of social institutions’ (Rawls 1971, 3). The institutional analysis of law carried out so far, like socio-legal studies generally, has paid less attention to a crucial dimension of practical reason. The claim to correctness of the legal order, a claim revived whenever controversies, disputes or conflicts emerge concerning the legitimacy of legal norms and institutions, or their correct interpretation in hard cases, are given their best possible meaning (Dworkin 1986). Law, as part of practical reason, makes a claim to correctness that goes beyond its claim to formal validity, legality and authority (Raz 1994, 199), and even beyond the inner morality of law (Fuller 1964). Not only is the legal system and its norms valid, they are also morally correct because the legal system, the legal order and the institutions of law, aspire to reflect justice (Alexy 2010). This is not an external claim to be checked empirically. The claim of law as integrity, the dual nature of law is internal and conceptual: it would be self-defeating and conceptually contradictory for the law to content itself with legality and not claim correctness at all, or not interested in justice. If law discarded this claim to integrity, it would not be an institutional normative order. The very concept of the norms as justificatory reasons implies an internal claim to correctness. It is the very idea of norm in practical reason, of order and of institution that implies such claims to moral correctness, justifying actions and decisions. We go back to Gardner’s delphic observation that ‘the law exists to improve people’s conformity with reasons that already apply to them’ (2018, 77), and we could add, following from the previous section, that legal institutions exist to stabilise such reasons. Practical reason may guide action and decision-making in complex and critical situations where the rule of law – the virtue of legality – clash with other important values and 5

  Like many sociologically inclined German and Central European jurists, Luhmann and Weinberger were influenced by Schelsky’s notion of social institution as ‘objektiv, festgelegtes System sozialer Handlungen’ (1980, 215). Discourse and systems theories soon took over, however, and the general sociological theory of institutions gradually lost ground. I am indebted to Jiří Přibáň for pointing out Schelsky to me.

Legal theory and sociology of law  17 claims to justice put forward by norm-users and litigants. ‘The paradigm of law is law that exhibits all of the moral virtues that can be exhibited by institutions, not just the virtue of legality. When law can exhibit legality only at the expense of other moral virtues, it is by no means a foregone conclusion that legality must triumph’ (Gardner 2010, 426). This principle of orientation that sees law as an argumentative practice, and legal reasoning as part of practical reason, can be taken into account by a judge when judging human and social action, but it can also contribute to the sociology of law when analysing and even researching into the claims of law and the question of authority and legitimacy, and the internal legal culture of a law as part of practical reason. This conceptual framework should also be of use to the sociology of litigation.

CONCLUSION The dialogue between jurisprudence and sociology of law will bring about an enhanced understanding of the phenomenology of law. This dialogue has all too often been eschewed by both disciplines, obsessed as they were with achieving full scientific credentials on their own. Law’s domain is not an empire nor a closed system of norms, not even a collection of raw data (social facts) but, rather, argumentative practice and practical reason in a highly institutionalised setting, concerning personal lives in private and public spheres. The language games of the law operate with rules (norms), processes (procedures) and institutions; they stabilise and reflect social practices, social action involving people’s rule-guided behaviour, disputes and conflicts concerning the rules, their meaning, scope and application, even their change, and the making and enforcement of authoritative decisions on the basis of such norms to concrete and real disputes. The internal (re) construction of that system of norms, procedures, institutions and argumentative practice seeking fairness is the law in the books and the law in the minds, of particular interest to jurisprudence. The external social action reflecting and generating such practice is the law in action that makes socio-legal scholars tick. I cannot begin to see how understanding ‘the legal’ could neglect either discipline.

REFERENCES Alexy, R. 2010. ‘The Dual Nature of Law’. Ratio Juris 23(2), 167–82. Austin, John 1832. The Province of Jurisprudence Determined. London: John Murray. Austin, J. L. 1950. ‘Truth’. Proceedings of the Aristotelian Society. Sup. Vol. 24, 111–28. Austin, J. L. 1962. How to Do Things with Words. Oxford: Oxford University Press. Banakar, Reza. 2009. ‘Law Through Sociology’s Looking Glass: Conflict and Competition in Sociological Studies of Law’. In Ann Denis and Devorah Kalekin-Fishman (eds). The New ISA Handbook in Contemporary International Sociology: Conflict, Competition, and Cooperation. New York: Sage. Bengoetxea, Joxerramon. 2011. ‘Multilingual and Multicultural Legal Reasoning: The European Court of Justice’. In Anne Lise Kjaer and Silvia Adamo (eds). Linguistic Diversity and European Democracy. Aldershot: Ashgate, 97–122. Bengoetxea, Joxerramon. 2015. Neil MacCormick y la Razón Práctica Institucional. Lima: Grijley. Bix, Brian. 2018. ‘John Austin’. The Stanford Encyclopedia of Philosophy. Stanford, CA: Stanford University Press. Bohannan, Paul. 1965. ‘The Different Realms of the Law’. American Anthropologist 67(6), 33–42. Bourdieu, Pierre. 1975. ‘The Specificity of the Scientific Field and the Social Conditions of the Progress of Reason’, Social Science Information, 14 (6), 19–47. Delacroix, Sylvie. 2006. Legal Norms and Normativity: An Essay in Genealogy. Oxford: Hart.

18  Research handbook on the sociology of law Douglas-Scott, Sionaidh. 2013. Law after Modernity. Oxford: Hart. Dworkin, Ronald. 1986. Law’s Empire. London: Fontana. Ehrlich, Eugen. 1936. Fundamental Principles of the Sociology of Law. Cambridge, MA: Harvard University Press. Ferrari, Vincenzo. 2006. Derecho y Sociedad. Elementos de sociología del derecho. Bogota: Universidad Externado de Colombia (translated from Diritto e Società, Elementi di Sociologia del diritto. Roma: Laterza. 2004). Finnis, John. 1980. Natural Law and Natural Rights. Oxford: Clarendon Press. Finnis, John. 1981. ‘Natural Law and the “Is”-“Ought” Question: An Invitation to Professor Veatch’. Catholic Lawyer 26, 266–77. Fukuyama, Francis. 1995. Trust: the Social Virtues and the Creation of Prosperity. New York: Free Press. Fuller, Lon L. 1964. The Morality of Law. New Haven, CT: Yale University Press. Galligan, Dennis. 2006. Law in Modern Society. Oxford: Oxford University Press. Gardner, John. 2010. ‘Ethics and Law’. In John Skorupski (ed). The Routledge Companion to Ethics. Abingdon: Routledge, 420–29. Gardner, John. 2018. From Personal Life to Private Law. Oxford: Oxford University Press. Giddens, Anthony. 1984. The Constitution of Society: Outline of the Theory of Structuration. Cambridge: Polity Press. Håkan, Hydén and Mans Svensson. 2008. ‘The Concept of Norms in Sociology of Law’. In Hydén Håkan and Per Wickenberg (eds). Contributions in Sociology of Law. Remarks from a Swedish Horizon. Lund Studies in Sociology of Law 29. Lund: University of Lund, 129–46. Hart, Herbert L. A. 1961. The Concept of Law. Oxford: Clarendon Press. Hertogh, Marc. 2009. Living Law: Reconsidering Eugen Ehrlich. Oxford: Hart (Oñati series). Jung, Heike. 2020. ‘Rechtswissenschaft Revisited’. In Shin Matsuwaza and Kimmo Nuotio (eds). Methodology of Criminal Law. Nomos Hart (forthcoming). Kelsen, Hans. 1911. Hauptprobleme Der Staatsrechtslehre Entwickelt Aus Der Lehre Vom Rechtssatze. Tübingen: Mohr. Kelsen, Hans. 1960. Reine Rechtslehre. 2nd ed. Wien: Deuticke Verlag. Kornhauser, Lewis 2017. ‘The Economic Analysis of Law’. The Stanford Encyclopedia of Philosophy. Stanford, CA: Stanford University Press. Lacey, Nicky (2004). A Life of H. L. A. Hart: The Nightmare and the Noble Dream. Oxford: Oxford University Press. Longworth, Guy. 2017. ‘John Langshaw Austin’. The Stanford Encyclopedia of Philosophy. Stanford, CA: Stanford University Press. Luhmann, Niklas. 1972. Rechtssoziologie. Hamburg: Reinbek. Luhmann, Niklas. 1985. A Sociological Theory of Law. London: Routledge & Kegan Paul. MacCormick, Neil. 1992. ‘Further Thoughts on Institutional Facts’. International Journal for the Semiotics of Law, V/13, 3–15. MacCormick, Neil. 2007. Institutions of Law. Oxford: Oxford University Press. MacCormick, Neil and Ota Weinberger. 1986. An Institutional Theory of Law. Dordrecht: Kluwer. Moore, George E. 1903. Principia Ethica. Cambridge: Cambridge University Press. Perrin, Jean-François. 1990. ‘Un modèle théorique pour la comparaison entre faits sociaux et normes juridiques’. Oñati Proceedings on Sociology of Law, Splashes and Sparks. Oñati: IISL, 127–36. Přibáň Jiří. 2015. Sovereignty in Post-Sovereign Society: A Systems Theory of European Constitutionalism. London: Routledge. Putnam, Robert. 1993. Making Democracy Work: Civic Traditions in Northern Italy. Princeton, NJ: Princeton University Press. Rawls, John. 1971. A Theory of Justice. Oxford: Oxford University Press. Raz, Joseph. 1994. Ethics in the Public Domain. Oxford: Clarendon Press. Rivaya, Benjamin. 2019. ‘Entrevista a Vincenzo Ferrari’. Diálogos Jurídicos 4, 307–31. Schelsky, Helmut. 1980. Die Soziologen und das Recht. Wiesbaden: Springer. Searle, John R. 1969. Speech Acts: An Essay in the Philosophy of Language. Cambridge: Cambridge University Press. Searle, John R. 2010. Making the Social World: The Structure of Human Civilization. Oxford: Oxford University Press. Tamanaha, Brian Z. (2017). ‘Necessary and Universal Truths about Law?’ Ratio Juris 30(1). Twining, William. 2019. Jurist in Context. A Memoir. Cambridge: Cambridge University Press. Wallace, Jay R. 2018. ‘Practical Reason’. The Stanford Encyclopedia of Philosophy. Stanford, CA: Stanford University Press. Weber, Max. 1978. Economy and Society, Vols 1 and 2. Berkeley, CA: University of California Press. Weinberger, Ota. 1991. Law, Institutions and Legal Politics: Fundamental Problems of Legal Theory and Social Philosophy. Dordrecht: Kluwer. Wittgenstein, Ludwig. 1953. Philosophical Investigations. Oxford: Blackwell. Zagrebelski, Gustavo. 1995. El derecho dúctil. Madrid: Trotta. (Originally, Il diritto mite, Torino, 1992).

2. Sociological jurisprudence: tradition and prospects Roger Cotterrell

INTRODUCTION Juxtaposing the words ‘sociological’ and ‘jurisprudence’ might seem to produce a straightforward idea. It might simply mean jurisprudence – that is, jurists’ theoretically oriented understandings about law – significantly influenced and, perhaps, shaped by sociological knowledge, methods or research. But is sociological jurisprudence a particular kind of jurisprudence which is sociologically informed? Or should all jurisprudence be so informed, so that sociological jurisprudence indicates jurisprudence as it ought to be? Because law is a social phenomenon, should all jurisprudence be oriented towards social inquiry – therefore towards social sciences that provide a storehouse of methods, theories and research achievements to serve this inquiry? And what does ‘sociological’ mean? Does it imply that jurisprudence (or some kind of jurisprudence) depends on sociology as a specific academic discipline – its traditions, theories and methods? Must the jurist become a sociologist? Or does ‘sociological’ indicate a transdisciplinary study to which all social sciences can potentially contribute? For some time these questions were largely avoided as matters for debate in the Anglophone world because when the idea of sociological jurisprudence first appeared it was inseparably associated with the work over half a century of one scholar, the American jurist Roscoe Pound (1870–1964), who not only coined the term in the English legal literature but gave his own answers to the questions above. This chapter first summarises Pound’s legacy for jurisprudence, asking what remains of value and what is properly discarded. Then a sample of developments since Pound is discussed to indicate ways in which sociological jurisprudence has come to be understood since his time, and some current problems in defining its nature and scope. Finally, the chapter suggests prospects for contemporary sociological jurisprudence and how this research enterprise might best be characterised today.

USING AND ESCAPING POUND’S LEGACY Pound presented sociological jurisprudence as the necessary modern form that jurisprudence must take, at least in societies such as his own. When he located it historically, he described it as the most recent form of jurisprudence, preceded by a vast range of other approaches. But Pound saw sociological jurisprudence as the way jurisprudence should be. Being oriented towards observation of the social world and the interests of citizens in a rapidly changing society, it would present jurists with essential resources to cope with social change. The implication was that other jurisprudential approaches were not 19

20  Research handbook on the sociology of law equipped to do this. Jurisprudence had to ally itself with the social sciences. And ‘sociological’, for Pound, implied social science resources in general, although he was initially strongly influenced by the early pioneers of American sociology as a discipline. So, sociological jurisprudence would be a practically oriented, normatively directed juristic enterprise. Sociology of law might aim for scientific detachment, but sociological jurisprudence would prioritise engaging with law reform and legal policy debates, and would be actively committed to promoting the values of democratically-founded modern legal systems. It would not hesitate to ‘pronounce judgements of value as to legal precepts and doctrines’ (Pound 1943, 20). It would be committed to the service of lawyers, courts and legislatures, and actively involved in the interpretation and reform of law. Pound built a seemingly clear and definite conception of ‘law’ into sociological jurisprudence. Law was state law, the law of ‘politically organised society’ – the kind of law that any lawyer could readily accept as such. It would not include what sociology of law was already designating as ‘living law’ (Ehrlich 1936, 493) – existing social norms that, even though widely experienced as powerfully authoritative by those subject to them, were not recognised as law in the official legal system. When Pound characterised sociology’s concern with law (as sociology of law) to distinguish it from lawyers’ concerns with sociology (as sociological jurisprudence) it was most often by emphasising the place of ‘living law’ as a topic for sociology of law, and its absence as one for sociological jurisprudence. His eyes as a jurist were always on ‘the developed state’ and its ‘matured or developed law’ (Pound 1943, 20). Understandably then, Pound could not see legal issues and phenomena that have become very important in sociology of law since his time. For example, he could not envisage legal pluralism in the forms that have long been central in much social scientific research on law, and are now being recognised in legal philosophy (for example, Roughan and Halpin 2017). Always focused on state law, he could not see that law would come to be seen as also including intra-national law (non-state regulatory regimes and allegiances within politically organised societies), transnational law (addressing non-state actors across state boundaries) and new forms of international law that embraced not just law binding states by their agreement, but self-standing international legal regimes, now sometimes addressing individuals and other non-state actors. Having an orthodox lawyer’s viewpoint, even though in his early career he was a fierce advocate of legal reform, he did not learn from the disciplinary progress of sociology, or the expanding ambitions of sociology of law.1 And because he never lost his faith in courts as leading instruments of social progress (if properly guided and reformed), sociological jurisprudence under his dominating influence lost touch with socio-legal research, and with shifting emphases in the forms and shapes of legal regulation (especially as regards legislative strategies and administrative regulatory processes). Equally, he could not see how traditional forms of legal regulation were being supplemented by juristically unfamiliar ‘private’ regulatory forms. Insofar as Pound’s sociological jurisprudence was tied to a focus on courts this may reflect American legal culture in general2 even up to the

1

  On Pound’s engagements with sociology see Geis 1964, and Treviño 1994, 30–1.   But for a claim that Pound’s ideas had influence far beyond discussion of the work of courts see Knepper 2016. 2

Sociological jurisprudence  21 present day, but since much regulation in complex contemporary societies never comes within view of courts, sociological jurisprudence has to shift focus if it is to address juristic issues in regulation generally. Pound’s conservatism in thinking about law and regulation, as viewed from today’s vantage point, needs emphasis because, for many scholars, the idea of sociological jurisprudence is still firmly associated with his work (see for example, Tamanaha 2020; Lyman 2002). So, his theories sometimes lie like a dead weight across aspirations for contemporary legal engagement with social science at the level of juristic theory – aspirations to infuse juristic thought deeply with social scientific understandings and resources. But we shall note later that efforts have been made to avoid these limitations in many important ways. However, it is also necessary to stress advances Pound made, which are today often ignored, and which may still be important to sociological jurisprudence. First, is the already noted normative and practical commitment which he attached to sociological jurisprudence. Rejecting legal positivism, he insisted that legal values and ideals (not to be seen as universals, but as rooted in time and place) are central to the jurist’s work. A valueorientation has to guide jurisprudence and the jurist’s work. He set out a programme to put sociological jurisprudence into action (Pound 1912, 513–6). And he frequently condemned what he called ‘give-it-up’ legal philosophies (for example, Pound 1941, 255) which analysed law’s intellectual structures without considering how they might be improved or subjected to social critique. Second, he presented sociological jurisprudence as distanced from legal philosophy. Pound well recognised philosophy’s value to jurisprudence, but if ‘we cannot give an answer which will be . . . wholly convincing to the philosopher, it does not follow that we may not have a good workable blueprint . . .’ (1941, 250). Avoiding ‘systems of juristic metaphysics’ (Pound 1905, 353), sociological jurisprudence must have its own direction and concerns. When philosophy seeks systems ‘of supposed universal validity . . . a universal plan or absolute starting points or charts for all times and places’ the lawyer ‘has learned to cease to follow . . .’ (1941, 254). Pragmatism – judging the significance of ideas simply in terms of how they worked out in practice – would be the appropriate philosophical outlook. Third, while Pound limited his focus to state law, he nevertheless broadened the concept of law to free it from a fixation with rules alone and to recognise other distinct components of legal doctrine (such as principles, values, standards and concepts) (1941, 256–7; 1943, 15), doing this long before Ronald Dworkin developed a similar line of thought. Pound’s concept of law embraced institutions and practices as well as doctrine, so he saw law in much wider terms than those typical of Hart-inspired contemporary legal positivism. And his concern was not to arrange these components of law in an analytical scheme, but to facilitate a wider view of law’s social functions and varied techniques to serve them. To this extent he at least hinted at something of the vast diversity of types of regulation that confront jurists today. Fourth, in avoiding being limited by narrow disciplinary definitions of ‘sociology’, he opened the way for jurists to think of the ‘sociological’ in broad, open transdisciplinary terms, as any systematic and theoretical, empirically-focused study of social phenomena, as these vary with time and place. But it must be admitted that, after his initial enthusiasm for the work of some pioneer American social theorists, he had little interest in conceptualising the idea of ‘sociological’, treating it mainly as a label. He left it for others to think through what a transdisciplinary sociology, useful for jurists, should be.

22  Research handbook on the sociology of law Finally, he also sought to displace legal philosophy’s typical individualistic emphasis on rights with a broader social view of claims made on law, which he eventually conceptualised in terms of individual, social and public interests (Pound 1942, Ch. 3). Interest analysis is full of problems (for example, Llewellyn 1962, 14; Teubner 1989, 747–8; Swedberg 2005), and Pound never got beyond a static categorisation of interests. But in his early writings he often strongly attacked what he saw as the excessive individualism of legal thought, and argued for a central place in jurisprudence for wider social perspectives, even praising ‘the group of socialist jurists’ who promoted ‘a socialization of the law’, and claiming he wanted to balance socialism and individualism (Pound 1905, 352; 1912, 502) in mapping a path for legal development. Through half a century of consistent advocacy, Pound’s ideas dominated sociological jurisprudence, but it should be seen today, and even historically, as in no way tied to his work. Outside America, sociological jurisprudence emerged in the work of the ‘free law’ (freirechtslehre or libre recherche scientifique) jurists in Germany, Austria and France, which appeared at much the same time as Pound first wrote. Their focus, like Pound’s, was on the need to enable courts to develop law by interpreting it in progressive ways using knowledge of social conditions, including sociological resources (Gény et al. 1917). Since Pound, the idea of sociological jurisprudence has sometimes been bracketed with that of legal realism, which generally took a far more sceptical view of the possibilities of courts as agents of social change, and promoted – as sociological jurisprudence generally did not – empirical analysis of judicial practice. Otherwise, sociological jurisprudence has often been a label applied generally to the work of lawyers appealing to social science, or actually undertaking social scientific research that could be juristically relevant, as in Eugen Ehrlich’s pioneer studies (Treviño 2013). But Ehrlich’s work presents an instructive example of diverse types of study being carried out by the same person – in his case, sociological jurisprudence on the one hand, and sociology of law on the other. As a leading figure in the ‘free law’ movement, Ehrlich contributed to sociological jurisprudence, advocating sociological awareness to improve jurists’ theoretical understanding of the judicial process and make courts responsive to social needs (Gény et al. 1917, Ch. 2). But in other studies, including his Fundamental Principles of the Sociology of Law (1936), Ehrlich aimed to study through detached, scientific sociological observation what he saw as the entire range of regulatory structures of social life – not just activities of state agencies such as courts, but also norms regulating everyday social relations and social associations in which individuals are linked to each other. In his classic Fundamental Principles, Ehrlich did not don the cap of the sociological jurist, as in his ‘free law’ advocacy, but that of the sociologist, describing and analysing the organising structures of society.

VARIETIES OF SOCIOLOGICAL JURISPRUDENCE Responsive Law, Reflexive Law and Their Progeny Because Pound never saw sociological jurisprudence as legal philosophy in the dominant sense of the term assumed today, it is unsurprising that his ideas have usually been dismissed by contemporary legal philosophers. However, there is a line of Poundian

Sociological jurisprudence  23 influence in sociology which has contributed to modern developments in sociological jurisprudence. The celebrated sociologist Philip Selznick thought Pound had many ‘good things to say’ (Cotterrell and Selznick 2004, 297), and it has been claimed that Selznick’s influential sociology of law is ‘in many ways a jurisprudence that builds on and adds dimension to that of Pound’ (Lyman 2002, 170). Controversially, Selznick insisted that sociology of law must take juristic values seriously – especially the value of legality and the ideal of the rule of law. This concern eventually led to a strong sympathy with jurisprudence (which he saw as value-focused) and distanced him from the positivist scientific mainstream of American sociology. Selznick’s naturalistic approach to sociology treats social (including legal) institutions as embodying values that help to define their essential nature. And his book Law, Society and Industrial Justice (1969) explores the possibility of legal values in ‘private’ contexts, such as collective bargaining in industry, thus adopting a juristic focus in studying social life beyond state law. The book, along with research inspired by it (for example, Edelman 2002), is a resource for broadening jurisprudential vision beyond the public institutions of law. But what ultimately brings sociology of law and jurisprudence close to fusion in Selznick’s work on law is his substantial blurring of any fact/law dichotomy (Selznick 1973, 18, 22): thus, he sees legality as both an observable social phenomenon (the reduction of arbitrariness in rule application) and an ideal that must animate legal institutions. One either buys into this naturalistic sociology or not. But a more cautious approach than Selznick’s can be adopted. One might see sociology as potentially able to explain: (i) why certain values or value-debates seem meaningful in particular social contexts; (ii) under what social conditions chosen values might be best realised (and how those conditions might themselves be promoted); and (iii) what social consequences might follow from pursuing certain values (Cotterrell 2018, 173–4). Selznick once wrote that sociology can best serve law ‘by tending its own garden’ (1959, 117) and that should mean, it can be suggested, avoiding actually taking on jurisprudential projects in a way that turns sociological inquiry into jurisprudence itself. There is a real danger in confusing jurisprudence and sociology of law. In their book Law and Society in Transition, Selznick and his collaborator, Philippe Nonet, state their aim as ‘to recast jurisprudential issues in a social-science perspective’ (Nonet and Selznick 1978, 3), but they offer primarily a study in theoretical sociology of law, or social theory of law. They classify and conceptualise types of law (which they term ‘repressive’, ‘autonomous’ and ‘responsive’) while recognising patterns of social variation across time and place that make these types possible in particular societies. The book certainly sees responsive law (which involves a dialogue and learning process between legal regulators and the populations they regulate) as a juristically desirable destiny for law if conditions favour its emergence. But, ultimately, the commitment to a naturalistic approach to values, treating them as inherent in social phenomena, risks disabling sociology’s ability to explain and describe phenomena independently of juristic concerns. It threatens to reduce the value of sociology as an independent resource which jurists can use to enrich their own perspectives. The juristic perspective seems, for Selznick, already inbuilt in the sociological view of law. But most legal sociologists would not accept this characterisation. Nevertheless, the idea of responsive law – or more broadly the idea that law should be examined as a communication process with potential to link legal regulators with

24  Research handbook on the sociology of law regulated populations – is an enduringly important part of the sociological jurisprudence tradition carried beyond the work of Nonet and Selznick in various ways to the present time. One such way is in studies of the ideal and practice of the rule of law in specific political and social settings (for example, Krygier 2002; Krygier 2017), exploring its meaning as a social phenomenon. Another is in studies of communicative and symbolic functions of legislation (for example, Zeegers, Witteveen and Van Klink 2005) that emphasise dialogic processes linking legal regulators and regulated populations. Yet another example can be found in studies linking sociology of organisations and sociology of law, specifically focusing on empirical possibilities for state law to control or influence internal organisational processes and regulation; for example, in business corporations (Edelman and Stryker 2005; Edelman 2002). Such studies are properly seen as contributions to sociology of law, but their juristic relevance is obvious especially insofar as they show how legal ideas, imposed on the organisation from ‘outside’ by the state legal system, are often adapted, reinterpreted or avoided in ‘internal’ organisational processes. Hence, these studies have the potential to clarify how legal interpretation in various contexts can realistically be understood. A different line of development, equally focused on legal communication, transforms the concept of responsive law into that of reflexive law, especially in the work of Gunther Teubner, a legal sociologist and private lawyer who studied with Selznick, but has since been strongly influenced by Niklas Luhmann’s ideas. Teubner’s (1984) theory of reflexive law, somewhat like the organisation studies just mentioned, warns jurists that the topdown imposition of directive law is unlikely to work in the way lawmakers may envisage. Law must give up the idea of seeking direct control of most forms of social conduct in ways that are reliably predictable. Instead, in ‘reflexive’ form, it will serve a co-ordinating function, providing frameworks in which legal actors can organise their socio-economic relations; effectively providing their own self-guidance within communicative structures shaped by law. Teubner has applied Luhmann’s systems theory to juristic purposes. While Luhmann sees law as a normatively closed communication system which cannot directly address social spheres outside its own discursive operations, Teubner emphasises ‘coupling’ between different social communication systems, including that of law. The aim is to try to hypothesise how law can often productively ‘irritate’ social spheres beyond it, even if it cannot communicate directly with them. But a problem with this approach is that there seems to be little empirical sociological evidence to support Luhmann’s and Teubner’s sweeping claims about modern law’s theoretically inevitable total self-referentiality – that social systems ‘are, in principle, inaccessible to regulation’ and that ‘law, politics, and regulated subsystems [of society] are “black boxes” in the sense of mutual inaccessibility’ (Teubner 1984, 299–300).3 As sociological jurisprudence, Teubner’s theoretical ideas have to be seen as ultimately directed to juristic purposes, and they do draw directly on social theory. Unlike Selznick’s or Pound’s approaches, however, they make scant reference to legal values. In general, when Teubner writes as a theorist of law he does so to describe and explain law’s conceptual and social character, revealing this from a sociological perspective. As a lawyer he is

3

  For Selznick’s distancing from such views see Cotterrell and Selznick 2004, 300–1.

Sociological jurisprudence  25 acutely aware of regulatory problems that must somehow be juristically addressed. But his juristic messages seem often negative – emphasising what law cannot be asked to do, coupled with a search for seemingly very strictly limited possibilities for legal regulation to contribute to social regulation. Teubner’s work and that of other legal scholars influenced by Luhmann is much concerned with law as ideas, doctrine and discourse. So, if sociological jurisprudence aims to use social theory to aid an understanding legal ideas, this kind of research is surely relevant to sociological jurisprudence. The doctrinal focus, emphasising the role of legal ideas in social ordering, promotes reliance on social science here. In relatively recent work, Teubner (2012), followed by other scholars, has moved to consider constitutional frameworks in this perspective, suggesting that the legal-political concept of ‘constitution’ can be radically rethought as ‘societal constitutionalism’ to envisage more effective governance structures of social spheres, such as economy, media, medicine or science. More generally, it seems that socio-legal analysis of constitutional ideas has become a widely favoured vehicle for efforts to make sense of new conditions of regulation, both inside national political societies and transnationally beyond them (for example, Blokker and Thornhill 2017), perhaps allowing a major displacement from emphasis on the state as the defining jurisdictional limitation of juristic thought. Other work, putting constitutional ideas into comparative societal context, and emphasising their fictional character, has aimed to clarify their socio-political functions (see for example, Přibáň 2002). In a parallel development, doctrines and practices associated with administrative law as state law have been adapted and projected to provide means of analysing transnational or international regulatory structures (Kingsbury et al. 2005). Insofar as they emphasise juristically familiar western legal concepts, doctrines and processes, all these various types of research have strong juristic relevance while adopting – or at least implying a need for – wide perspectives to understand changing socio-political contexts. Sociological Jurisprudence and Culture The idea of sociological jurisprudence remains only loosely defined in relation to many studies such as those noted above, because it emerges interstitially from (i) projects that present themselves primarily as sociology of law (especially sociology of legal ideas) while showing obvious juristic relevance, or (ii) theoretical projects in doctrinal legal research that make some call, explicitly or implicitly, on social science. Since Pound’s time, the deliberate juxtaposing of jurisprudence – as theory aimed at serving practical juristic concerns – and sociology has often seemed uneasy, raising complex issues of method. Consequently, the term sociological jurisprudence itself has often been avoided (though notably not by Selznick and scholars directly influenced by him). Since Pound, the theoretical status of sociological jurisprudence as a research enterprise, and its general aims and methods, have rarely been seriously examined, although a vast range of research – such as the contributions just mentioned – can sail, at least to some extent, under the flag of sociological jurisprudence. However, F.S.C. Northrop’s unjustly neglected book, The Complexity of Legal and Ethical Experience (1959), does uniquely provide that serious examination. Significantly, it is the work of a sociologically well-informed philosopher, writing before anglophone legal philosophy set its present agenda. Its main focus is on methods of sociological jurisprudence, and its perspective

26  Research handbook on the sociology of law reaches back to the beginnings of empirical sociology of law in Ehrlich’s idea of living law, treating this idea as the key to what sociology can offer to jurisprudence, especially towards theorising judicial practice. In this way, it presents a strong (though mainly unacknowledged) continuity with the thinking of the continental ‘free law’ jurists. Northrop addresses the question of method directly, asking exactly how sociology of law should inform jurisprudence. He interprets Ehrlich as holding that a sociological understanding of living law – the effective social norms actually governing individuals’ lives – must directly influence state law, including especially judicial decision-making and legal interpretation. But, Northrop asks, why should jurists and judges respect living law if it seems misguided, reactionary and inconsistent, or trumped by persuasive state legal policy concerns? When, why and how far should it be accepted or rejected as a juristic guide? The basic question is: How should juristic practice be influenced by sociological research? Northrop’s solution is to look beneath the surface of social norms, which might or might not be worth following juristically, to deeper cultural realities they reflect (which jurisprudence cannot ignore). The juristically relevant living law is to be found in deep cultural patterns (1959, 35) which can be understood partly through sociological research and partly through a philosophical anthropology; that is, introspection on shared understandings that actually make up a culture. Sociological jurisprudence, seen in this way is a mix of humanistic and social science methods directed to juristic problems. Law, as seen in Northrop’s theory, consists of: (i) positive law (derived in different legal systems and social contexts, inductively, deductively or in processes of arbitration or mediation); (ii) living law (in the sense of deep culture); and (iii) natural law (which for him means ‘scientifically verified’ understandings of ‘facts about man that are logically antecedent to, and independent of’ cultural differences) (1959, 43). It is interesting to compare Northrop with Pound. The latter also emphasised fundamental values underpinning law, but found them in what he called ‘jural postulates’ (Pound 1942, 113–6) embedded in legal doctrine. But Northrop calls on anthropology and philosophy to help ascertain those values. Again, while Pound sought the social insights that judges and jurists should take into account in the interests presented to the legal system in litigation and legislative lobbying, Northrop seeks them in culture, empirically studied in social science and conceptualised through philosophy. Northrop was deeply interested in cultural variation and while his particular take on sociological jurisprudence has not found followers, culture has now become a central focus for sociological jurisprudence because it has become an ever more prominent concern for juristic practice. This practice now addresses such topics as ‘cultural defences’ pleaded in criminal and tort cases, ‘cultural appropriation’ as a legal wrong, ‘cultural heritage’ as property protected in law and ‘cultural rights’ in general. Northrop’s sociological jurisprudence remains abstract, but points unambiguously to practical problems of juristic practice. While the juristic significance of culture is hardly a new discovery, legal issues around multiculturalism in western societies, including especially the impact of Islamic ideas, have made a sociological jurisprudence of culture prominent and inspired avast socio-legal literature – too extensive to survey here – on law, religion and customary practice. This literature encompasses many empirical studies of minority cultural practices and the juristic issues that such practices present. Beyond that, it is possible to think

Sociological jurisprudence  27 more generally in terms of a ‘jurisprudence of difference’ (Cotterrell 2003, 233) centred on the significance of many kinds of patterned differentiation among regulated populations. Multicultural jurisprudence is just one aspect of this. Others include especially feminist jurisprudence, alongside a proliferating range of jurisprudential approaches focusing on social diversity.

A PROSPECTUS FOR SOCIOLOGICAL JURISPRUDENCE? What common characteristics do the approaches to sociological jurisprudence, discussed above, have in common? Ideas of responsive law, of reflexive law and of juristically significant living law in Northrop’s sense share, despite great differences, the idea that jurisprudence as juristic theory must learn systematically from study of its social environment. This environment can be seen in contrasting ways: as (i) seemingly inevitably, normatively resistant to state law (Teubner); (ii) a source of moral expectations that can, if sociologically understood, be put in dialogue with state law (Nonet and Selznick); or (iii) a fund of empirically identifiable normative experience that state law must take into account if it is to be effective as regulation (Northrop). There are other possible positions on the jurisprudence-sociology relationship, but these three basic ones are often reflected in the literature. In many cases, such as those of Pound, Selznick and Northrop, the question of juristic values is prominent in sociological jurisprudence. In some others, this question is largely absent; sociological jurisprudence is then just a project of confronting lawyers’ existing ideas about the nature of positive law with sociological perspectives that cast doubt on them, forcing a rethinking of law’s regulatory possibilities and conceptual frameworks. In a series of important books, the American socio-legal scholar, Brian Tamanaha, has developed elaborate arguments about the importance of social science for a rethinking of legal ideas. In particular, he has focused on what he sees as the inadequacies of contemporary positivist legal philosophy, often called (including by Tamanaha himself) analytical jurisprudence. These inadequacies arise precisely because of its lack of attention to sociological perspectives. Tamanaha’s work deserves careful discussion because it is the most significant attempt to use sociological insights to challenge standard ideas in contemporary legal philosophy (which influences much current juristic theory). In this he has the advantage of being not only a modern western lawyer, but also a socio-legal observer with experience of non-western legal practice, in environments where non-state law (such as customary law) retains an important place in regulation. So, it is not surprising that Ehrlich’s ideas of living law (which in part can be identified with custom) are often discussed in Tamanaha’s work. He attacks legal philosophy’s projects of trying to establish ‘essential’, ‘necessary’ or ‘universal’ attributes of law. Empirical observation of the vast range of countries and social contexts where an idea of law is familiar should make it obvious, Tamanaha (2017, Ch.3) argues, that there are no such essential, necessary or universal features. The search for a conclusive answer to the question ‘What is law?’ (even when scaled down to ‘What is law for us?’) is pointless and barren, at least if the jurisprudential concern is (as it should be) to find concepts that can be useful in recognising and making sense of the varieties of regulation existing in the world, in many different socio-political settings.

28  Research handbook on the sociology of law In this, Tamanaha is indisputably right (see also Cotterrell 2018, Ch.4). Sociology is centrally concerned with studying social variation – that is, variation in the way social life is organised in different times and places, which includes legal variation, since law itself is a social phenomenon. And variation in law entails not only variation in law’s regulatory components, but in the very manner in which law itself is understood as a social phenomenon. Although Tamanaha does not write in terms of pragmatic ‘models’ of law, provisional and revisable with experience, I think it is useful to do so (Cotterrell 2018, 33, 76, 86–8, 222–4). Such models are not definitions for all times and places. They are working hypotheses about what is useful to think of as law, for the time being, in the light of available experience, informed by existing sociological knowledge about the various kinds of regulation that are in practice accepted as authoritative. In contemporary western societies, state law is especially significant as such a kind, but there can be others that are far from irrelevant to juristic practice. Many of these are now being analysed as forms of transnational or intra-national law (Cotterrell 2018, Pts. 2 and 3). Tamanaha’s writings, insofar as they aim to challenge analytical jurisprudence by putting it into a sociological context, powerfully demonstrate the inadequacy of an analytical jurisprudence that does not seek sociological aid, but they pose some serious problems. One, surprisingly, is about the status and meaning of sociological jurisprudence itself. Tamanaha now prefers to use the term ‘social legal theory’, indicating a ‘third branch of jurisprudence’ (2017, Ch.1) alongside two other branches – analytical jurisprudence and the long philosophical tradition of natural law theory. In fact, sociological jurisprudence has often been seen as such a third branch of jurisprudence. But Tamanaha’s category of social legal theory is vague. It refers to theories ‘that revolve around’ the insight ‘of the interconnectedness of law and society’ (2017, 27), so it includes not only historical jurisprudence and Pound’s sociological jurisprudence, but also ‘social theories’ of law produced by ‘figures outside jurisprudence in . . . sociology and anthropology’ (such as Max Weber) and legal philosophers such as Neil MacCormick. ‘The broad range and sheer diversity of social legal theories obscures that they fall . . . under a single jurisprudential umbrella’ (2017, 29). But on what criterion are they all ‘jurisprudence’? Tamanaha’s answer seems to be that they reveal the empirical or conceptual inadequacy of the legal philosophy of analytical jurisprudence – its expositions of the conceptual structures of positive law. The question remains: why are such challenges important? Cannot legal philosophy continue its speculations as part of philosophy and treat real world empirical issues about human life as irrelevant to that project, proclaiming that ‘it is a truism that nonhumans could have law’ (Shapiro, quoted in Tamanaha 2017, 36). One convincing answer is that such ‘pure’ philosophical conceptual inquiries do not address juristic purposes – that is, the purposes of jurists, committed not to philosophy but to the wellbeing of the idea of law as a socially valuable human practice in time and place. Legal philosophy uninterested in sociological insights is not juristically adequate. But, to say why it is necessary to define precisely what the role of a jurist can be, and thus what is the purpose of jurisprudence, and that involves considering values such as justice, security and, perhaps, solidarity – which inform practical juristic responsibilities in specific, varying socio-political contexts (Cotterrell 2018). But these matters are not on Tamanaha’s agenda for social legal theory. Pound’s work was much criticised for its imprecision (for example, Llewellyn 1962, 7–8). Today, to make a clear intellectual space for sociological jurisprudence, the nature

Sociological jurisprudence  29 of jurisprudence itself needs precise specification. I have argued elsewhere that it is a bricolage theoretical knowledge drawing from many intellectual sources, but always serving a committed, necessarily value oriented juristic practice (Cotterrell 2018, 32–57). In this perspective, sociological jurisprudence is not sociology of law, yet it depends on the resources of social science. Equally, it is not a third kind of jurisprudence competing with analytical jurisprudence and moral philosophies of law, yet it can use both of these for its own purposes. Indeed, it might be best seen not as a particular kind of jurisprudence, but as jurisprudence in general that is consistently and systematically sociologically aware (Cotterrell 2018, 12–13). As such, it should aim to provide theoretical critical resources for jurists interpreting law for a changing world.

CONCLUSION How then should sociological jurisprudence be conceptualised as a contemporary project? It has the task of filling a crucial practical and intellectual gap between sociology of law and legal philosophy. Like sociology of law, sociological jurisprudence must continually seek better systematic empirical understandings of the social world, with law as part of that world. It needs to draw on the best that social science can offer to aid these empirical understandings. Like legal philosophy, it has to be concerned with conceptual analysis of law – but not for its own sake. Conceptual analysis in jurisprudence does not aim to make a contribution to philosophy, but to help provide a resource for jurists, enabling them to do their job of working out practical understandings of legal ideas to solve practical regulatory problems in changing socio-economic and political conditions. And that involves, in part, a value focus: a concern with conceptualising and analysing legal values. Unlike sociology of law and legal philosophy, sociological jurisprudence finds its intellectual justification only as a resource for juristic practice (Cotterrell 2018). It exists to help fulfil the jurist’s practical responsibility for the wellbeing of a value oriented idea of law (which will usually entail a critical stance in relation to much law as it exists in practice). So, jurists are not sociologists with a disinterested scientific orientation, nor scholars aiming to advance academic philosophy. They should be seen as theoreticallyoriented lawyers critically serving legal systems to which they relate. That entails closely observing law’s varying social contexts and regulatory forms, and safeguarding and reconciling legal values that can give meaning to juristic practice in contemporary western legal systems. Sociological jurisprudence identifies the theoretical inquiries needed to help with these tasks.

REFERENCES Blokker, Paul and Chris Thornhill (eds). 2017. Sociological Constitutionalism. Cambridge: Cambridge University Press. Cotterrell, Roger. 2003. The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. 2nd edn. Oxford: Oxford University Press. Cotterrell, Roger. 2018. Sociological Jurisprudence: Juristic Thought and Social Inquiry. Abingdon: Routledge. Cotterrell, Roger and Philip Selznick. 2004. ‘Selznick Interviewed’. Journal of Law and Society 31, 291–317.

30  Research handbook on the sociology of law Edelman, Lauren B. 2002. ‘Legality and the Endogeneity of Law’. In Robert A. Kagan, Martin Krygier and Kenneth Winston (eds). Legality and Community: On the Intellectual Legacy of Philip Selznick. Lanham: Rowman & Littlefield, 187–202. Edelman, Lauren B. and Robin Stryker. 2005. ‘A Sociological Approach to Law and the Economy’. In Neil J. Smelser and Richard Swedberg (eds). Handbook of Economic Sociology, 2nd edn. Princeton: Princeton University Press, 527–51. Ehrlich, Eugen. 1936. Fundamental Principles of the Sociology of Law. Transl. W. L. Moll. New Brunswick: Transaction reprint, 2002. Geis, Gilbert. 1964. ‘Sociology and Sociological Jurisprudence: Admixture of Lore and Law’. Kentucky Law Journal 52, 267–93. Gény, François et al. 1917. Science of Legal Method: Selected Essays. Transl. Ernest Bruncken and Layton B. Register. Boston: Boston Book Co. Kingsbury, Benedict, Nico Krisch and Richard B. Stewart. 2005. ‘The Emergence of Global Administrative Law’. Law and Contemporary Problems 68, 15–61. Knepper, Paul. 2016. ‘The Investigation into the Traffic in Women by the League of Nations: Sociological Jurisprudence as an International Social Project’. Law and History Review 34, 45–73. Krygier, Martin. 2002. ‘The Quality of Civility: Post-anti-communist Thoughts on Civil Society and the Rule of Law’. In Andras Sajo (ed). Out of and into Authoritarian Law. The Hague: Kluwer, 221–56. Krygier, Martin. 2017. ‘Legal Pluralism and the Rule of Law’. In Nicole Roughan and Andrew Halpin (eds). In Pursuit of Pluralist Jurisprudence. Cambridge: Cambridge University Press, 294–325. Llewellyn, Karl N. 1962. Jurisprudence: Realism in Theory and Practice. New Brunswick: Transaction Publishers reprint 2008. Lyman, Stanford M. 2002. ‘Toward a Renewed Sociological Jurisprudence: From Roscoe Pound to Herbert Blumer and Beyond’. Symbolic Interaction 25, 149–74. Nonet, Philippe and Philip Selznick. 1978. Law and Society in Transition: Toward Responsive Law. New Brunswick: Transaction Publishers reprint, 2001. Northrop, F.S.C. 1959. The Complexity of Legal and Ethical Experience: Studies in the Method of Normative Subjects. Boston: Little, Brown. Pound, Roscoe. 1905. ‘Do We Need a Philosophy of Law?’ Columbia Law Review 5, 339–53. Pound, Roscoe. 1912. ‘The Scope and Purpose of Sociological Jurisprudence: Part 3’. Harvard Law Review 25, 489–516. Pound, Roscoe. 1941. ‘Roscoe Pound’. In Julius Rosenthal Foundation (ed). My Philosophy of Law: Credos of Sixteen American Scholars. Boston: Boston Book Co., 249–62. Pound, Roscoe. 1942. Social Control Through Law. New Haven: Yale University Press. Pound, Roscoe. 1943. ‘Sociology of Law and Sociological Jurisprudence’. University of Toronto Law Journal 5, 1–20. Přibáň, Jiří. 2002. Dissidents of Law: On the 1989 Velvet Revolutions, Legitimations, Fictions of Legality and Contemporary Version of the Social Contract. Abingdon: Routledge. Roughan, Nicole and Andrew Halpin (eds). 2017. In Pursuit of Pluralist Jurisprudence. Cambridge: Cambridge University Press. Selznick, Philip. 1959. ‘The Sociology of Law’. In Robert K. Merton, Leonard Broom and Leonard S. Cottrell (eds). Sociology Today, Problems and Prospects, Volume 1. New York: Basic Books, 115–27. Selznick, Philip. 1969. Law, Society, and Industrial Justice. New York: Russell Sage Foundation. Selznick, Philip. 1973. ‘Sociology and Natural Law’. In Donald J. Black and Maureen Mileski (eds). The Social Organization of Law. New York: Seminar Press, 16–40. Swedberg, Richard. 2005. ‘Can There Be a Sociological Concept of Interest?’ Theory and Society 34, 359–90. Tamanaha, Brian Z. 2017. A Realistic Theory of Law. Cambridge: Cambridge University Press. Tamanaha, Brian Z. 2020. ‘Sociological Jurisprudence: Past and Present’. Law & Social Inquiry 45, 493–520. Teubner, Gunther. 1984. ‘Autopoiesis in Law and Society: A Rejoinder to Blankenburg’. Law & Society Review 18, 291–301. Teubner, Gunther. 1989. ‘How the Law Thinks: Toward a Constructivist Epistemology of Law’. Law & Society Review 23, 727–57. Teubner, Gunther. 2012. Constitutional Fragments: Societal Constitutionalism and Globalisation. Trans. G. Norbury. Oxford: Oxford University Press. Treviño, Javier A. 1994. ‘The Influence of Sociology on American Jurisprudence: From Oliver Wendell Holmes to Critical Legal Studies’. Mid-American Review of Sociology 18, 23–46. Treviño, Javier A. 2013. ‘Sociological Jurisprudence’. In Reza Banakar and Max Travers (eds). Law and Social Theory. 2nd edn. Oxford: Hart. Zeegers, Nicolle, Willem Witteveen and Bart Van Klink (eds). 2005. Social and Symbolic Effects of Legislation Under the Rule of Law. Lewiston: Edwin Mellon.

3.  Sociology of law and legal history Chloë Kennedy

How does the sociology of law relate to legal history? How does legal history relate to the sociology of law? These are broad questions that are themselves capable of being historicized. For many theorists working in the eighteenth and nineteenth centuries, for example, the questions would have made little sense; understanding and evaluating law necessarily meant attending to its historically-specific social drivers (Tamanaha 2017, Ch. 1). Furthermore, where these questions do appear to make sense, the most commonly given answers differ vastly across time and place. This is clear in the diverging responses that the collapse of the most ambitious theories connecting law and society elicited. Once these theories had been largely undermined, often on account of their falsifiable teleological foundations, scholars on either side of the Atlantic reacted in very different ways. Whereas in England a narrow form of doctrinal legal scholarship took root, the ‘law and society’ movement, which examines legal rules and practices in their social, political and economic contexts, flourished in the United States (Lobban 2012). Given this diversity of views, this chapter does not attempt to provide exhaustive answers to the questions with which it opens. Instead, it sets out under three headings – ‘questions and focus’, ‘sources and methods’ and ‘aims and ambitions’ – some important points of convergence between legal history and the sociology of law, as well as some points of divergence. Through selecting what I perceive to be the most significant developments in each of these three areas, I aim to give readers a sense of current trends and point them towards new avenues for research, including opportunities for interdisciplinary collaboration. In light of the fact that the volume as a whole is dedicated to the sociology of law, there is greater emphasis on legal history. The discussion is nevertheless pitched such that sociologists and historians, and everyone who falls somewhere in between, will hopefully find something of value.

QUESTIONS AND FOCUS There are, naturally, several ways that the material in each section of this chapter overlaps. The aims of a research project shape the questions it seeks to answer, and different sorts of questions demand different kinds of methods and sources. Despite this, there is an important sense in which the questions(s) come first and, of all the questions we might ask about law, there are few that would not occur to both historians and sociologists of law. Even the most circumscribed doctrinal question, such as ‘what is the law of professional negligence?’ might be the subject of sociological investigation. A sociologist might want to establish what view legal practitioners take of this area of law, or of a specific legal rule that governs the attribution of liability.1 In a similar way, some legal historians continue

1

  This is known by sociologists as the ‘internal view’ (Griffiths 2017, 96).

31

32  Research handbook on the sociology of law to focus on tracing shifts in legal doctrine, either for its own sake or in search of rational coherence (Lobban 2004). This latter kind of approach is less popular than it once was, however, because it has a tendency to become overly formalist and critical legal scholars have thrown doubt on the idea that law embodies a coherent set of underpinning principles. It is also now widely believed that to understand legal rules requires a researcher to widen their perspective beyond an ‘internalist view’ of the law (Rose 2010). Important as this point is, it should not obscure the fact that a solid understanding of legal doctrine, and the institutions in which it is applied (Lacey 2016), often provides a good, some would say necessary, foundation for any further-reaching enquiries. How far, and in what direction, these enquiries extend varies in accordance with the questions asked. A perennial topic of interest for legal historians and sociologists of law alike is how laws and their relevant contexts – including their social, intellectual, political and economic contexts – construct one another. Within discussions about ‘law and context’ there is growing disagreement as to the nature of the ‘and’ relationship, how capacious conceptions of ‘law’ and ‘context’ can become whilst remaining intelligible, and whether there are alternative frameworks that do not depend on a binary.2 In spite of this, law and context studies of historical and contemporary stripes continue to proliferate, and an area of increasing interest is law and political economy. This approach, which is situated at the intersections of law, politics and economy, focuses on how law has contributed to growing economic inequality, the erosion of democratic institutions, and the intensification of ecological crises. It differs from older law and economics approaches in the way it highlights the role of legal and political orders in conditioning the operation of markets, thereby dispelling the impression that they are self-ordering (Wilkinson and Lokdam 2021). Perhaps the narrowest context against which law can be studied is its legal context. This form of analysis is favoured by Justin Desautels-Stein, who distinguishes it from both other law in context approaches and decontextualized studies that ask what law is (doctrinal analysis) or how law is conceived (philosophy of law) at a particular time and place. When analysing law in its legal context, relevant questions include what kind of legal arguments and juristic style are deployed within a legal system and what kind of lexicon and basic grammar are used. In other words, the object of investigation is the mode of legal thought. The main attraction of this approach is that it seems to offer a way of avoiding the extremes of either structuralist or post-structuralist legal scholarship. In their post-structuralist guise, law in context studies tend to erode the possibility of causal explanations such that all that remains is detailed but relatively futile description. In contrast, traditional structuralist accounts tend to gravitate towards becoming overly general and simplistic. Both are problematic, since an underdetermined narrative arc might be considered as bad as no narrative arc at all (Desautels-Stein 2016; 2018). Focussing on modes of legal thought thus promises a via media between two perhaps equally unattractive alternatives. In addition to this, however, it affirms the importance of attending to legal consciousness more generally. Broadly speaking, legal consciousness refers to the way that people – individuals and collectives of legal actors and lay

2   See the various ‘Law As . . .’ special editions of UC Irvine Law Review and volume 21 (2017) of Law Text Culture ‘Law As . . . Minor Jurisprudence in Historical Key’.

Sociology of law and legal history  33 people – perceive, and act in relation to, law. As an important facet of understanding how law operates in the world, legal consciousness is worthy of the attention of both legal historians and sociologists of law. In some ways, however, discerning legal consciousness is more challenging for legal historians because the participatory methods that contemporary sociologists can use to ascertain attitudes to law are frequently unavailable to legal historians. Nevertheless, it remains possible for historians to reconstruct popular and elite beliefs about law through examining how ordinary people and legal authorities sought recourse in, discussed, and reasoned with law (Brooks 2010). This often requires bringing ‘extra-legal’ factors back into the picture, though, such as legal actors’ educational backgrounds and the broader intellectual context within which they operated (Kennedy 2016). As with other forms of legal scholarship, the motivations for asking questions about legal consciousness are manifold. There is always a core explanatory or interpretive aim, but this can be augmented by more critical ambitions, such as identifying patterns of domination – who is privileged, who is oppressed – and what strategies exist for countering these dynamics (Halliday 2019). I return to this point in the final section of this chapter, where I consider the aims and ambitions of sociological and historical legal scholarship. Before that, however, it is important to consider the sources that are available to historians and sociologists of law and to think about how they use them. After all, the material that is available to a researcher has implications for how easily they can realise their aims and ambitions. Identifying how marginalised people perceive and access the law, for example, might be more challenging for a legal historian than it is for a sociologist of law, given the relative absence of such voices (or the dearth of attention paid to them) in the historical record (Zepeda 2018).

SOURCES AND METHODS In general, both legal historians and sociologists of law tend to draw on certain core materials that are used in, and emanate from, the legislative and adjudicative processes (Griffiths 2017). The principal sources that relate to the legislative process include petitions, evidence provided to committees, records of parliamentary debates and the resulting legislation itself. As for adjudication, where they exist law reports provide easy access to what is now considered the most authoritative output of the adjudicative process – the judgment. Yet case reports provide only limited insight into the wider legal, political, social and economic framework within which judgments are situated. Therefore, even where reliable case reports are available, historians and sociologists of law often seek alternative sources that shed light on juristic thinking (Blumenthal 2012), the arguments that lawyers made in court (Kennedy 2017a) and the practices of legal actors who exercised considerable discretion (Riggs 2012). Historians’ sources of this kind will almost always be in published or manuscript form, whereas sociologists of the present day or recent past also have the option of observing and interviewing the relevant legal actors. Witness statements provide a particularly rich source with which to understand the complex mediations between lay and professional legal consciousness, from which it is possible to derive a sense of the broader social and legal order of a time and place. For example, in a remarkable study drawing on thirteen and a half thousand witness statements that were offered in ecclesiastical and university courts, Alexandra Shepard shows how these

34  Research handbook on the sociology of law testimonies articulate the mechanics of identity formation undertaken by men and women who were asked to ‘account for themselves’ in early modern England. Furthermore, these testimonies reveal how the material wealth, age and gender of each witness shaped the court’s judgement of his or her credibility (Shepard 2015). In a similar way, a recent socio-legal study of asylum tribunal hearings uses witness statements to demonstrate how problematic gender stereotypes and cultural misunderstandings affect the credibility assessments of rape claims made by women asylum seekers (Baillot et al. 2014). Despite obvious and important differences, both studies work with witness testimonies, and the way these are received, to provide crucial insights into how reliability is determined within legal systems and how cultural expectations and assumptions shape these deliberations. Looking beyond legal materials towards other textual sources, newspapers and journals have the capacity to disclose much about how law is understood and used, both by elites and non-elites, and can also help identify drivers of legal change – an issue that is important to both legal historians and sociologists of law. Diaries and interpersonal communications, such as letters, can also serve similar ends. In fact, as is increasingly being recognised, literary, artistic (including non-textual) and other works grounded in the humanities have important ramifications for the way we understand law, historically and otherwise (Stern et al. 2019). This expansion in what is seen as an acceptable way of contemplating law is to be welcomed, but also serves as a reminder of the fact that what counts as a legitimate source is a matter of contingency. Going further, the way that law, and its various manifestations, is constructed as an object of study, distinct from other cognate spheres of knowledge (such as theology), is also a matter of contention. Remaining conscious of the assumptions that condition what are considered to be the possibilities of legal history and the sociology of law is therefore essential (Constable and Esmeir 2018), because these assumptions are always ripe for critical reflection. One aspect of legal scholarship, both historical and sociological, that is increasingly becoming subject to this kind of reflexive scrutiny is law’s materiality. Since the publication of Cornelia Vismann’s Files: Law and Media Technology (2008) more studies of how the storage, classification and accessibility of legal materials govern the production of legal knowledge and authority have emerged. Paul Halliday, for example, has argued that the notion of precedent – the idea that a sufficiently similar prior decision is binding on a court – developed in tandem with the compilation by law clerks of lists of significant cases. Using the eighteenth century Court of King’s Bench as a case study, he shows that by controlling physical access to legal texts law clerks shaped the development of the law and helped forge our sense of what it means to present a court with a compelling argument (Halliday 2014). Renisa Mawani has pushed these ideas further to suggest that the ocean, hardly an entity that would normally be considered a legal source, might constitute a legal counter-archive – a collection of artefacts that challenges the bureaucratized forms of curation on which traditional archives rely – that can convey the experiences of enslaved and oppressed peoples of the past (Mawani 2018a; 2018b). These questions – about the physical storage of law and how its power and effects are incorporated into things3 – might help us better understand law and its forms of

3   On how law embraces some objects and becomes embodied in others, see, for example, Jessie Hohman and Daniel Joyce (2018).

Sociology of law and legal history  35 governance.4 Recalling the importance of critically interrogating the conditions of legal history and the sociology of law, we might also ask how law itself is presented as dematerialised or otherwise and how legal categories are used to construct ontological boundaries, such as between persons and non-persons (Johnson 2018). A lot turns on how law creates and maintains its classificatory distinctions, and different schemes reflect distinct theoretical and ethical underpinnings. There are practical consequences, too, as illustrated by the recent recognition of rivers as legal persons that are therefore capable of bearing rights, powers, duties and liabilities (Clark et al. 2018). Yet thinking about how law is materialised and the way it draws ontological boundaries is only part of the materialist story. So-called new materialism, which is attracting attention amongst sociologists and has possible implications for legal history, aims to study assemblages of animate and inanimate entities in order to identify the affective flows between them. The idea put forward by sociologists who embrace this methodology is that there is no subject and no object in these relational groupings and that no entity has sole agency. Instead, the human and non-human aspects of such assemblages are analysed to see how together they produce the world around us and its histories (Fox and Alldred 2017). This historical dimension of new materialism can, it is said, be deployed by examining the affective flows between historical and contemporary assemblages that are revealed in what have been dubbed ‘transversal flashes’ (Fox and Alldred 2015, 409, discussing the work of Renold and Ivinson). Though many new materialists dissociate their work from historical materialism, refusing to rely on any foundational or transcendent forces, including structures or systems, and rejecting the draw of universalism, the notion of transversal flashes bears some resemblance to Walter Benjamin’s dialectical images. Despite being notoriously difficult to translate into something resembling a method that could be applied, some legal historians have suggested that Benjamin’s dialectical image offers a novel, materialist way of understanding law. Crucially, for present purposes, this points to a nascent area of potential convergence between historians and sociologists of law. According to Christopher Tomlins, a legal scholar who advocates reliance on Benjamin’s work, a dialectical image is formed when disparate objects (legal artefacts?) are dislodged from their respective contexts and brought together by the historian. At this time, ‘what has been comes together in a flash with the now to form a constellation’ (Tomlins 2016, 76, quoting Benjamin). Instead of treating the object or event under contemplation (law) as a product of its time and place, as most legal historians do, the meaning of law is instead grasped through this constellation and ‘the relationship in the observer’s present between the observer and what is observed’ (Tomlins 2016, 74). The overarching aim is to use these constellations to arrive at an enhanced appreciation of the present – a richer sense of the meaning of our own time, rather than a better understanding of past (Tomlins 2016, 77) – and this richer sense of the present will often be critical, for dialectical images are subversive. They are supposed to defamiliarize the things we take for granted. What is significant is that, like the new materialist sociologists, Benjamin aimed to differentiate his approach from what he saw as the universalizing ambitions, and results, of

4   These questions have been taken up recently by the Legal Materiality Research Network https://legalmateriality.wordpress.com

36  Research handbook on the sociology of law historicism. He also wanted to avoid relying on ‘formless progressive tendencies’ (Pensky 2004, 192 (quoting Benjamin), 194). It is not clear that he was successful on either count, though, since, at least according to one interpretation of dialectic images, Benjamin’s bringing together of the past and the present relies on ‘Messianic time’ – the time of the redemption of the world – and the purpose of defamiliarizing the object under scrutiny was to reveal its ‘true relation’ to its ‘mythic history’ (Pensky 2004, 192, 194–5). To speak in these terms seems to risk falling foul of the desire to avoid both homogenization and ethereal foundations. It could be, therefore, that dialectic images are simply another illustration of the tension between the universal and particular that I suggest, in the next section of this chapter, affects evaluative projects and explains their uneasy relationship with history. In any case, the use of dialectical images as the basis for concrete historical studies has yet to be tested. A very different way of trying to capture the meaning of historical events and their relationship with the present is starting to gain traction in the form of big data analysis. With the rise of mass digitisation of records it has become possible, using algorithmic analysis, to identify patterns and connections that would be impossible to see through human endeavour alone. A stimulating example of this method in practice is Ahnert and Ahnert’s study of the Tudor State Papers that are held in the British National Archives. Applying mathematical models to the metadata of 132,747 letters, dated between 1509 and 1603, Ahnert and Ahnert reveal that the correspondence with individuals who are known to have engaged in espionage and the trade of illicit information follows very specific patterns (2019). These results are significant for legal history because of what they suggest is possible by way of large-scale historical analysis. Clearly, analysing metadata in this way can bring trends and connections to light, but it can also reveal similarities across documents that transgress the categories assigned to the material by humans (Ahnert and Ahnert 2019, 46). As I noted above, one of the ambitions of materialist legal studies is to question, and possibly disrupt, the ontological and other categories that exist, and have existed, within law. It seems that metadata analysis could contribute this aim and, with more repositories of legal papers being digitised,5 the prospect of analogous legal projects seems increasingly likely.6 It is possible that digitisation will facilitate projects on larger geographic and temporal scales, too, increasing the number of international, comparative and global law projects and changing the kinds of questions they are able to tackle.7 A more controversial feature of the turn to big data is whether and how it might be used to predict change. The Tudor Letters study explicitly engages with this issue, connecting its findings up with contemporary surveillance practices and emphasising the need for academics to join state institutions in thinking carefully about the ethics of data collection (Ahnert and Ahnert 2019). But beyond contemplating the possible infringements of liberty and privacy that big data could encourage, there is a larger 5   See, for example, the Transatlantic Collaborative Scottish Court of Session Digital Archive Project. http://scos.law.virginia.edu 6   For other large-scale digital data projects see Old Bailey Online: https://www.oldbaileyonline. org/static/Projects.jsp#toc7 7   On long durée historical studies and big data, see Jo Guldi and David Armitage (2014) and responses; for example, Deborah Cohen and Peter Mandler (2015).

Sociology of law and legal history  37 question: whether predictive and explanatory accounts that rest on big data signal the return of the now largely discredited work of scientific historians. The development of so-called ‘cliodynamics’, and the backlash this has stimulated, suggests that this is at least a risk. Described by its creator, Peter Turchin, as ‘theoretical historical social science’, cliodynamics uses data generated by history, archaeology and other specialist disciplines to construct ‘unifying theories’ that transcend space and time and can, arguably, predict future world events (Turchin 2008, 34–5). The technique is currently being used via a large database, named Seshat, to test hypotheses that try to explain extremely complex phenomena such as economic growth, political stability and possible links between Axial Age religions and human egalitarianism (Turchin et al. 2015).8 According to its detractors, however, there are at least two major problems with this approach. First, the cyclical theories of change that cliodynamic analysis has propounded seem to be refuted by the idiosyncrasy of historical events and the unpredictability of human behaviour. Second, the idea that cliodynamics can produce something that approaches objective truth seems to downplay the possibility that aggregating data, which was not recorded in an unbiased way to begin with, in a way that strips the data of its context, might decrease rather increase its reliability (Spinney 2019). These worries about the move to big data, and the birth of cliodynamics in particular, are perhaps best understood as expressing themes that occur across the long history of collective empiricism. The collation and use of large amounts of data have always involved navigating (or, to be more accurate, sometimes avoiding) the politics of knowledge production. It has also always involved negotiating the competing desires to do justice to the heterogeneity of the material collected and to impose a necessarily unifying semblance of order (Aronova et al. 2017; Jardine and Drage 2018). Lest the researcher end up like Borges’ tortured Funes, a ‘lucid spectator of a multiform world which was instantaneously and almost intolerably exact’, some abstraction and generalisation is necessary (Borges 1962). To their credit, at least practitioners of cliodynamics are frank about their desire to aim for something close to totalizing knowledge and the (mathematical) means by which they hope to get there. In that sense, they are not guilty of perpetuating the ‘illicit quality of the metaphysical tendencies of these [big data] projects’ (Jardin and Drage 2018, 15). From comparing the new materialist turn to the big data turn, it becomes clear that they share a common challenge: how to accept that it is impossible to arrive at truly objective, universal knowledge while remaining committed to comprehending, as best as we can, the varied experiences of peoples and places (at least those we can access) in the hope that this can ‘tell[] us something about the world that our species instantiates’ (Schlegel 2018, 575). Realizing this is not the end of the story, though; questions remain. High on this list is whether scientific induction or vague notions of progress or mystical time are the only options available in trying to undertake this task. Equally important is whether this knowledge can extend to values as well as the causal drivers of change and, if so, which kinds of values these are and how they can be discerned. Finally, and relatedly, are the questions of what kinds of projects this knowledge can support, and what exactly is the role of the legal historian or sociologist of law in these.

8

  http://seshatdatabank.info; Peter Turchin et al. (2015).

38  Research handbook on the sociology of law

AIMS AND AMBITIONS Although most sociologists and historians of law would agree that they share the aims of understanding, interpreting and explaining legal rules, practices and institutions, there is less consensus on whether and how they can (or should) contribute to evaluative and reform-oriented endeavours. It seems relatively uncontroversial to say that legal history and the sociology of law have separately, and sometimes together, a lot to offer the exercise of critique, by which I mean the practice of identifying and describing the particular configuration(s) of meaning that exist at a specific time and place in a way that allows their contradictions and contingencies to be seen. Criticism, on the other hand, which advances a proposed alternative – a form and direction that rectification or reconciliation could take – is nowadays seen as less well served by historical and sociological studies of law.9 The two main ideas underpinning this perception are that neither history nor sociology can offer a ‘view from nowhere’, and that securing this ‘view from nowhere’ is a necessary precursor to identifying the ideals that ought to orient evaluative and reformist efforts. These are mainstream assumptions that are connected to the tendency, since at least the eighteenth century, to hypostasize an ontological split between the immanent world we occupy and a transcendental realm that lies beyond it, whether that be a realm of ideas or Divine transcendence (Hughes 2003, 171). Together, these assumptions have encouraged two further assumptions that have, in turn, fortified the impression that historians and sociologists have little role to play in evaluating and reforming the law. These are, first, that a commitment to identifying and applying ideals that transcend space and time is synonymous with disdain for the immanent world and its particular needs and problems and, second, that attending to the specificities of time and place, including the world’s needs and problems, breeds scepticism as to the existence of values and ideals that transcend space and time. These assumptions are reflected in the familiar is/ought distinction, which firmly separates the way things are from the way things should be (Kennedy 2017b). If all these assumptions hold true, then the most historians or sociologists can offer by way of criticism is a reality check on ideal theorizing. They can help identify the need for reform (via critique) and suggest how possible solutions will be received – how successful they will be and what unintended consequences might arise – but they have no role in putting forward, or advocating, the solutions themselves. As Michael Lobban puts it, ‘the historian cannot determine whether a Liberal Feminist vision is better than a Radical Feminist or a Cultural Feminist vision’ (Lobban 2016, 18) and, as John Griffiths warns, sociologists of law can discourage mistakes in thinking about the social workings of legal rules, but they should avoid trying to produce work that is ‘socially relevant’ (Griffiths 2017, 125). Though still prevalent, this perspective is coming under increased pressure from scholars who believe that socio-historical work can play a more generative role in the important tasks of appraising and trying to improve law and legal systems. Sociologists of law and

9

  On ‘critique’ and ‘criticism’, see Emilios Christodoulidis and Johan Van Der Walt (2018, 600). On the tendency to regard history – and empirical scholarship more generally – as ill-suited to evaluation and reform, see Chloë Kennedy (2017b).

Sociology of law and legal history  39 politics, for example, are seeking to reorient their fields towards articulating conceptions of ideals like justice, fairness or freedom on the basis of the possibility of a universalistic conception of humanity (Chernilo 2013). This is to search for normative grounding in the world we inhabit and, therefore, to reject an absolutist is/ought distinction. It is to try to identify something about the kind of people we are from the sorts of things we do – a kind of philosophical anthropology – that can be used as the basis of criticism. Historically attentive legal scholars are making similar moves when they argue, for example, that moral psychology provides a way of mediating ethics and history. As Alan Norrie has suggested, identifying the moral psychology we exhibit through our collective actions can allow us to attend both to the importance of our ethical concepts (as opposed to their ‘a priority’) and their historical and institutional shaping (as opposed to their historical reducibility) (Norrie 2017). Put differently, searching for normative foundations that are rooted in empirical observation can allow us to use sociological and historical knowledge as a basis for both critique – more deeply understanding our current situation and the tensions it harbours – and criticism – pointing to ways of improving things. Legal rules, practices and institutions are as capable of providing insights like these as any other social, human-made phenomenon. As sociologists of law like Philip Selznick have suggested, examining legal systems can bring to light the enduring values that they embody (for example, the rule of law) (Krygier 2012). They might also reveal our more general ethical commitments insofar as the thick ethical concepts upon which laws rely – blame, responsibility, trust and so on – constitute imperfect attempts by us to realise them. To reinstate these aims as a core part of the socio-historical study of law would in many ways represent a return to the suggestions, made centuries ago, by one of the most famous but under-utilised jurisprudes, Adam Smith.10 For Smith, natural justice, which he considered to be the proper basis of positive laws, consisted of the principles of the impartial spectator. Significantly, these were to be identified through spectatorial sympathy with others and through consulting attempts to approach the standpoint of the impartial spectator, including those attempts that are, and have been, expressed in laws. The benchmarks against which laws could be criticised were therefore, in an important sense, universal – they were those of the impartial spectator – but they came from examining particular communities of the past and present and their efforts to realise justice (Kennedy 2017b, 572). Regrettably, there are more people writing about how to engage in this kind of sociohistorical research than actually doing it (and this chapter is obviously no exception). Furthermore, even as a theoretical possibility the Smithian approach, and others like it, are wrought with difficulties. It is not clear, for example, how substantive or numerous the universal values and concepts it would reveal might be. The likelihood is that they would be relatively few and rather minimalist. On top of this, some of the worries that beleaguer big data and cliodynamics seem to affect socio-historical jurisprudence too. Despite their very different methods – scientific extrapolation and humanistic interpretation – the likelihood of cultural imperialism plagues both, on account of the blunting or erasure of nuance that both entail, and the unavoidability of human bias. Just how socio-historical jurisprudence of Smith’s kind is supposed to work without the assistance of something

10

  Despite a surge of interest in Smith, he is still most often discussed as a political economist.

40  Research handbook on the sociology of law like algorithmic analysis is a further concern. The authors of the Tudor Letters study estimated that it would take a sole reader, working eight hours each working day, almost 16 years (without holidays) to read the material they had analysed (Ahnert and Ahnert 2019, 29). This is a formidable task, even for a collective of researchers, and, if successful, it would only amount to a deep and rich understanding of one set of papers, from one jurisdiction, covering one era. To be sure, this emphasises just how important large-scale collaborative efforts are to understanding complex social phenomena like law. That said, perhaps the most important lesson that is provided by considering these two burgeoning areas of socio-historical research together is that it is vital to remain as humble and selfreflexive in our scholarly efforts as we are (rightly) bold in our ambitions.

CONCLUDING THOUGHTS This overview of the intersections between sociology of law and legal history has highlighted some shared methods, sources and aims. It has also pointed out where these two ways of approaching the phenomena related to law tend to diverge, particularly when it comes to the kinds of materials on which historians and sociologists of law are able to draw. As the range of sources that are considered academically acceptable expands beyond the traditional and the textual, and the range of methodological approaches diversifies with the aid of innovative technologies, new prospects for collaboration and cross-disciplinary scholarship are emerging. Importantly, however, fundamental disagreements exist as to what are the appropriate tasks of historians and sociologists of law and these are often underpinned by diverging (and possibly unarticulated) metaphysical assumptions. Given that these disagreements crop up within both historical and sociological approaches, they are more likely to present challenges to collaborative efforts than any methodological or epistemological disparities between the two disciplines. Keeping the issues discussed in the preceding section of this chapter in mind is therefore necessary if socio-historically minded legal researchers are to make the most of these exciting new opportunities.

REFERENCES Ahnert, Ruth and Sebastian E. Ahnert. 2019. ‘Metadata, Surveillance and the Tudor State’. History Workshop Journal 87, 27–51. Aronova, Elena, Christine von Oertzen and David Sepkoski. 2017. ‘Introduction: Historicizing Big Data’. Osiris 32(1) 1–17. Baillot, Helen, Sharon Cowan and Vanessa E. Munro. 2014. ‘Reason to Disbelieve: Evaluating the Rape Claims of Women Seeking Asylum in the UK’. International Journal of Law in Context 10(1), 105–39. Blumenthal, Susanna. 2012. ‘Of Mandarins, Legal Consciousness, and the Cultural Turn in US Legal History: Robert W Gordon, 1984, Critical Legal Histories’. Stanford Law Review 36, 57–125. Law & Social Inquiry 37(1), 167–86. Borges, Jorge Luis. 1962. ‘Funes, The Memorious’. Transl. by Anthony Kerrigan. In Anthony Kerrigan (ed). Ficciones. New York: Grove Press, 107–15. Brooks, Christopher W. 2010. Law, Politics and Society in Early Modern England. Cambridge: Cambridge University Press. Chernilo, Daniel. 2013. The Natural Law Foundations of Social Theory: A Quest for Universalism. Cambridge: Cambridge University Press. Christodoulidis, Emilios and Johan Van Der Walt. 2018. ‘Critical Legal Studies: Europe’. In Markus D. Dubber and Christopher Tomlins (eds). Oxford Handbook of Legal History. Oxford: Oxford University Press, 577–602.

Sociology of law and legal history  41 Clark, Cristy, Ourania Emmanouil, John Page and Alessandro Pelizzon. 2018. ‘Can You Hear the Rivers Sing? Legal Personhood, Ontology, and the Nitty-Gritty of Governance’. Ecology Law Quarterly 45, 787–844. Cohen, Deborah and Peter Mandler. 2015. ‘The History Manifesto: A Critique’. The American Historical Review 120(2), 530–42. Constable, Marianne and Samera Esmeir. 2018. ‘Rhetoric and the Possibilities of Legal History’. In Markus D. Dubber and Christopher Tomlins (eds). Oxford Handbook of Legal History. Oxford: Oxford University Press, 79–95. Desautels-Stein, Justin. 2016. ‘A Context for Legal History, or, This is Not Your Father’s Contextualism’. American Journal of Legal History 56(1), 29–40. Desautels-Stein, Justin. 2018. ‘Structuralist and Post-Structuralist Legal History’. In Markus D. Dubber and Christopher Tomlins (eds). Oxford Handbook of Legal History. Oxford: Oxford University Press, 541–60. Fox, Nick J and Pam Alldred. 2015. ‘New Materialist Social Inquiry: Designs, Methods and the ResearchAssemblage’. International Journal of Social Research Methodology 18(4), 399–414. Fox, Nick J. and Pam Alldred. 2017. ‘Sociology and the New Materialism’. Global Social Theory. https:// globalsocialtheory.org/topics/new-materialism/ [last accessed 2 June 2020]. Griffiths, John. 2017. ‘What is Sociology of Law? (On Law, Rules, Social control and Sociology)’. The Journal of Legal Pluralism and Unofficial Law 49(2), 93–142. Guldi, Jo and David Armitage. 2014. The History Manifesto. Cambridge: Cambridge University Press. Halliday, Paul. 2014. ‘Authority in the Archives’. Critical Analysis of Law 1, 110–42. Halliday, Simon. 2019. ‘After Hegemony: The Varieties of Legal Consciousness Research’. Social & Legal Studies 28(6) 859–78. Hohman, Jessie and Daniel Joyce (eds). 2018. International Law’s Objects. Oxford: Oxford University Press. Hughes, Glenn. 2003. Transcendence and History: The Search for Ultimacy from Ancient Societies to Postmodernity. Columbia, MO: University of Missouri Press. Jardine, Boris and Matthew Drage. 2018. ‘The Total Archive: Data, Subjectivity, Universality’. History of the Human Sciences 31(5), 3–22. Johnson, Tom. 2018. ‘Legal History and the Material Turn’. In Markus D. Dubber and Christopher Tomlins (eds). Oxford Handbook of Legal History. Oxford: Oxford University Press, 497–514. Kennedy, Chloë. 2016. ‘Ungovernable Feelings and Passions: Common Sense Philosophy and Mental State Defences in Nineteenth Century Scotland’. Edinburgh Law Review 20(3), 285–311. Kennedy, Chloë. 2017a. ‘Declaring Crimes’. Oxford Journal of Legal Studies 37(4), 741–69. Kennedy, Chloë. 2017b. ‘Immanence and Transcendence: History’s Roles in Normative Legal Theory’. Jurisprudence 8(3), 557–79. Krygier, Martin. 2012. Philip Selznick: Ideals in the World. Stanford, CA: Stanford University Press. Lacey, Nicola. 2016. In Search of Criminal Responsibility: Ideas, Interests, and Institutions. Oxford: Oxford University Press. Lobban, Michael. 2004. ‘Introduction: The Tools and the Tasks of the Legal Historian’. In Andrew Lewis and Michael Lobban (eds). Law and History: Current Legal Issues. Oxford: Oxford University Press, 1–32. Lobban, Michael. 2012. ‘The Varieties of Legal History’. Clio @ Thémis 5, 1–29. Lobban, Michael. 2016. ‘Prospects for Dialogue’. In Maksymilian Del Mar and Michael Lobban (eds). Law in Theory and History: New Essays on a Neglected Dialogue. Oxford: Hart Publishing, 3–21. Mawani, Renisa. 2018a. Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire. Durham, NC: Duke University Press. Mawani, Renisa. 2018b. ‘Archival Legal History: Towards the Ocean as Archive’. In Markus D. Dubber and Christopher Tomlins (eds). Oxford Handbook of Legal History. Oxford: Oxford University Press, 291–310. Norrie, Alan. 2017. ‘Criminal Law and Ethics: Beyond Normative Assertion and its Critique’. The Modern Law Review 80(5), 955–73. Pensky, Max. 2004. ‘Method and Time: Benjamin’s Dialectical Images’. In David S. Ferris (ed). The Cambridge Companion to Walter Benjamin. Cambridge: Cambridge University Press, 177–98. Riggs, Paul T. 2012. ‘Prosecutors, Juries, Judges and Punishment in Early Nineteenth-Century Scotland’. Journal of Scottish Historical Studies 32(2), 166–89. Rose, Jonathan. 2010. ‘Studying the Past: The Nature and Development of Legal History as an Academic Discipline’. Journal of Legal History 31(2), 101–28. Schlegel, John Henry. 2018. ‘Sez Who? Critical Legal History Without a Privileged Position’. In Markus D. Dubber and Christopher Tomlins (eds). Oxford Handbook of Legal History. Oxford: Oxford University Press, 561–76. Shepard, Alexandra. 2015. Accounting for Oneself: Worth, Status, and the Social Order in Early Modern England. Oxford: Oxford University Press. Spinney, Laura. 2019. ‘History as a Giant Data Set: How Analysing the Past Could Help Save the Future’. The Guardian 12 November 2019. https://www.theguardian.com/technology/2019/nov/12/history-as-a-giant-dataset-how-analysing-the-past-could-help-save-the-future [last accessed on 2 June 2020].

42  Research handbook on the sociology of law Stern, Sim, Maksymilian Del Mar and Bernadette Myler. 2019. The Oxford Handbook of Law and Humanities. Oxford: Oxford University Press. Tamanaha, Brian. 2017. A Realistic Theory of Law. Cambridge: Cambridge University Press. Tomlins, Christopher. 2016. ‘Historicism and Materiality in Legal Theory’. In Maksymilian Del Mar and Michael Lobban (eds). Law in Theory and History: New Essays on a Neglected Dialogue. Oxford: Hart Publishing, 55–83. Turchin, Peter. 2008. ‘Arise “Cliodynamics”’. Nature 454, 34–35. Turchin, Peter, Rob Brennan, Thomas Currie, Kevin Feeney et al. 2015. ‘Seshat: The Global History Databank’. Cliodynamics 6(1), 77–107. Vismann, Cornelia. 2008. Files: Law and Media Technology. Stanford, CA: Stanford University Press. Wilkinson, Michael and Lokdam Hjalte. 2021. ‘Law and Political Economy’. In Mortimer Sellers and Stephan Kirste (eds) (forthcoming). Encyclopedia of the Philosophy of Law and Social Philosophy. Heidelberg: Springer. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3144723 Zepeda, Lizeth. 2018. ‘Queering the Archive: Transforming the Archival Process’. disClosure: A Journal of Social Theory 27, 94–102.

4.  Sociology of law and legal anthropology Fernanda Pirie

What does legal anthropology bring to the sociology of law? Anthropologists study social forms in all their variety. They focus on local patterns, dynamics and detail. Historically, anthropology was concerned with the foreign and exotic, and in the legal field scholars studied processes of conflict resolution and customary norms in traditional societies. But in recent years anthropologists have also conducted research in more urban and modernized settings. Their studies have encompassed the education and activities of legal elites, national and international courts and law making, and transborder movement and globalization. What primarily distinguishes anthropological from other approaches to these topics is their method. Spending long periods in the field, ethnographers produce rich descriptions, revealing variety, complexity and uncertainty. They describe contradictions and tensions as much as systems and order, and find patterns in unexpected places. Their studies may be less tidy than those of their sociological colleagues, but anthropologists problematize common models and assumptions, fill in detail, reveal complications and raise new questions for research.

PARTICIPANT OBSERVATION Most ethnographies are based on participant observation, conducted through months or even years in a single field site. This enables the researcher to understand the ways in which people think, as well as how they act and what they say. Ethnographers explore meanings, understandings and beliefs, investigating how their subjects see and make sense of their worlds. They discover the implicit assumptions that people make, which may not match the accounts they offer researchers, or even themselves. Time – long duration – is critical. The researcher must build up trust, look beyond the images and ideas that informants present, and ask why they do what they do. What are the connections they make, but do not express? This means listening for the unsaid, looking for the visually unmarked, and sensing the unrepresented (Dresch and James 2000, 23). Like many sociologists, anthropologists conduct open-ended conversations and record life stories, but they also observe daily routines, take notes at events and listen in on chance conversations. And they always let the material they gather suggest the conclusions they draw.1 They do not engage in theory testing or apply pre-determined models and theories, however plausible these may seem in the early stages of research. Anthropologists always anticipate that what they find will confound their expectations, sending them back to the analytic drawing board to explore new themes, models and patterns.

1

  This is a form of ‘grounded-theory’, although anthropologists rarely use this phrase.

43

44  Research handbook on the sociology of law What, then, do anthropological methods and approaches bring to the field of legal sociology? In the early years of the ‘law and society’ movement, many anthropologists conducted influential studies of courts, litigation and alternative methods of dispute resolution (Nader 1979, 1980; Mather and Yngvesson 1980–1).2 Sally Merry (1990), for example, used methods of participant observation in an important analysis of lower courts in the US. She talked to litigants from all backgrounds, finding out about what they took to court and why, how they experienced different parts of the process, and how they were treated by the judges and court staff. As she expected, the legal processes did not always, or even often, provide litigants with the outcomes they sought. Rather they forced claims into unfamiliar language and categories, disregarding pressing concerns and failing to protect the most vulnerable. But she also found, more surprisingly, that it was litigants who were most keen to adopt the categories of the law. They squeezed complaints about spouses, lovers, children, neighbours and landlords into the legal categories of ‘assault’, ‘harassment’, ‘breach of contract’ and ‘truancy’ (Merry 1990, 13, 98). By contrast, the court staff were inclined to dismiss what they called ‘garbage’ cases, trying to persuade litigants to take them to mediation or other venues for resolution, framing them as social problems rather than legal issues. The litigants placed their trust, that is, in the formality and language of the legal system, although it often did not produce the outcomes they sought. Merry’s study has been influential in the field of legal sociology, especially among those interested in ‘legal consciousness’. Here, scholars have used a variety of methods to explore the attitudes people adopt and the understandings they hold in their encounters with the law. A lively debate has ensued about what it means and reveals to study ‘legal consciousness’, even whether it continues to be a useful term of analysis or field of research (Halliday 2019). But within this broad field, the approach taken by anthropologists continues to be distinctive. As Merry (1990, 50) pointed out, research conducted through large-scale surveys tends to flatten out the ways in which people understand ‘the law’, assuming that everyone has an overall stance to law as ‘a thing’ rather than a series of interpretations of different facets, which may be complex and contradictory. By seeking to acquire an understanding of the world as people, themselves, see it, anthropologists remind legal scholars that they should always be careful with their terms of analysis and the theories they may implicitly be trying to test. Are people actually concerned about ‘the law’, or anything that could be regarded as ‘legal’? Does it even make sense to ask about their attitudes towards ‘the law’? Or are they more worried about justice, or authority, or being understood? Or something else? Anthropologists constantly question the categories they use to frame and analyse their case studies. This is particularly important when scholars move beyond familiar legal realms. Many anthropologists have examined change and modernity in the ‘global south’, often in postcolonial settings (Comaroff and Comaroff 2006). Here, they have discussed the ways in which traditional and historic practices have adapted and changed in the modern world. But although practically everyone is now subject to some sort of state law, the ways in which they experience it are very different. So are the issues that arise for ordinary people, litigants, witnesses, officials and judges. Anthropologist Morgan Clarke (2012) spent time

2

  Anthropologists in the UK conducted similar studies somewhat later (Rock 1993).

Sociology of law and legal anthropology  45 conducting participant observation in Lebanon’s state-run family courts. Here, the judges are supposed to apply Islamic laws and principles based on the Shari‘a, but he found that the Islamic legal scholars who accepted these appointments often tried to avoid the formality and legalism of the court processes. In initial meetings with litigants, as one judge explained, he preferred to speak to the parties ‘as a brother’, doing his best to promote conciliation. Like other colleagues, he found it an effort (if this approach failed) to adopt the ‘dry’ and ‘harsh’ language of a judge and follow the legal processes demanded by the state’s courts. Here were judges who tried to avoid the state’s legal processes, preferring the attitudes shaped by a very different system of law. But their reasons were complex, rooted in tradition and religious practices as much as their judicial experiences and the demands of the state’s bureaucracy. Attitudes among the judges varied, too. Spending 15 months in a very different setting, among Tibetan populations of Ladakh in northern India, I found complex social relations within a remote community. The villagers resolved conflict, made collective decisions and regulated communal life all without any resort to the laws and courts of the region, or even the authority of Buddhist scholars (Pirie 2008). Nor did the villagers create documentary records of their decisions, or the agreements they reached at the end of a process of conflict resolution. They preferred to rely on memory, turning their backs on all forms of legalism. Law was hardly part of their world at all. Such studies reveal the limits of the state’s laws and the influence of other social processes and forms, not all of them distinctly legal. They indicate that we should never assume different legal traditions and experts play similar roles within their societies. What some scholars gloss as ‘legal cultures’ (Nelken 2010; Merry 2010) or ‘legal traditions’ (Glenn 2014) are not at all similar or homogeneous. Through their long-term fieldwork, then, anthropologists are able to reveal hidden complexities in the legal edifices of the modern world and the ways in which ordinary people negotiate their way through them. And sometimes they discover surprising patterns. In China, Matthew Erie (2016) studied members of the Hui Muslim minority, who tried to reconcile the demands of Islamic law with the bureaucratic requirements of the state. He found that representatives of the Party-state, generally not Muslims themselves, nevertheless referred to Islamic legal rules in order to promote what they considered to be a ‘good’ way of life. It was not a simple case of the Muslim minority against the secular state. Kedron Thomas (2016) conducted ethnographic research among garment workers in Guatemala, who created copies of protected brands in infringement of international intellectual property regimes. He explored the way in which global standards are institutionalized and enforced. But his work also questions the seemingly common sense legal framework of intellectual property rights. It reveals indigenous attitudes to what is ‘real’ and ‘fake’, held by people who denied the idea of an ‘original’ and maintained alternative notions of value. In each of these cases, long-term fieldwork produced rich and varied accounts, which reveal the quite different ways in which legalism, law and their institutions impinge on ordinary lives, along with the creative ways in which people use, avoid and negotiate the law. This is particularly true within the many studies of indigenous people and the claims they have made for recognition and respect of their traditional ways of life (see Povinelli 1993, 2002, among many others). Researchers have found that international laws, including the conventions drawn up to protect the rights of indigenous people, offer useful resources in surprising circumstances. The language of ‘rights’ may represent quite a

46  Research handbook on the sociology of law different register from indigenous ways of understanding the world, yet people adopt it without apparent difficulty (Leve 2007). But the outcomes of the resulting legal processes are unpredictable, and the experiences of indigenous people are rarely entirely positive (Goodale 2017, Ch. 6). Other anthropologists, albeit still few in number, have turned to the activities of the legal elite. Researchers who have been able to negotiate access to powerful and influential informants have revealed surprising details about law and policy-making. In the late 1990s, Annelise Riles worked with lawyers and financiers in Japan, where the government had recently introduced new laws for its financial markets, following the ‘Big Bang’ of international deregulation. Her ethnography describes how the lawmakers went about their complex task and how they modelled their new laws on American and other foreign systems (Riles 2011). This was despite the fact that the informal systems previously followed by Japan’s financiers had, as they admitted to her, worked perfectly well. Surprisingly, she found that her informants were enthusiastic about the new laws. They were ‘a response to foreigners’ demands’, ‘a statement to the outside world’ (Riles 2000, 31–2). They felt that the new laws would make Japan strong, ‘the best it can be’, with the rule of law, like the US, England and others (2000, 14). The new laws were symbolic as much as practical, designed to bring Japan into line with ‘global standards’, something that Riles was only able to uncover through conversations with informants whose trust and confidence she had gained (2000, 34). Working in the British Virgins Islands (BVI), Bill Maurer (1995) also found that the islanders took a complicated, and sometimes contradictory, approach to the making of new financial laws. On the one hand, this British dependency was proud of having ‘its own’ laws, including the International Business Companies Ordinance of 1984, which established the territory as a tax haven. The islanders felt that through this law they could distinguish themselves from their neighbours; it established the BVI as a place of ‘law and order’, attractive to wealthy businesses and individuals. On the other hand, following scandals in other tax havens, they became concerned about their international reputation. So they followed the direction of the UK’s Foreign Office to draft new financial legislation and entered into a treaty with the US, which allowed federal investigators to scrutinize the BVI’s offshore financial records. The islanders’ attitudes veered between a desire to demonstrate the island’s ‘uniqueness’, concerns about ‘borrowed law’ and a desire to participate in the world economy and live up to international expectations. Such studies prompt new questions. They suggest that legal scholars should ask not just how people understand the law and whether or not it helps them to resolve disputes – is it fit for purpose? – but also why they find it, or certain styles of law, attractive in a variety of settings. Why turn to legal documents, forms and processes – or not? Rather than assuming that law is a tool for hegemonic social control or an instrument for dispute resolution, although it is often these things, we need to ask about the complexities and contradictions inherent in legal practices and the creative ways in which people engage with the law. The answers to such questions shed light on developments in other spheres of lawmaking, including the growing field of transnational law. Why are laws drawn up by trading organizations and international bodies, even when there is no authority to enforce them? Here, anthropologists can add empirical detail and comparative insights to the theories of legal and sociological scholars (Koskenniemmi 2011; Klug and Merry 2016).

Sociology of law and legal anthropology  47 Anthropologists use their methods to reveal gaps between what people say and what they do, then, to discover the unexpected and elicit the unsaid. They use rich ethnographic material to analyse laws, legal processes and understandings in ways that may not occur to the researcher who sets out to test a theory, conduct a wide-ranging survey with questions carefully crafted in advance, or search for systematic comparisons. In these ways, anthropologists often raise new and unanticipated issues for sociologists of law.

COMPARISONS Detailed case studies call for comparison, another technique widely used by anthropologists. Studying what is culturally distinct inevitably invites comparison, both with familiar types of law and legal categories and with other legal forms from different parts of the world. In the 1970s, the legal anthropologist, Sally Falk Moore, conducted ethnographic research among the Chagga, an African group living on the slopes of Mount Kilimanjaro. Later, as she described (1973), she realised that their relationship with the colonial state had parallels with the practices of garment traders in contemporary New York.3 In both cases, people had developed what she called a ‘semi-autonomous social field’ within, but to some extent separate from, the state. The actors in this field built up expectations and interacted according to local social norms. In the Chagga case, these involved traditional property and inheritance patterns, which they adapted to the post-colonial situation without closely following the legal rules the administrators tried to impose on them. And where these laws conflicted with their own norms, they subverted the bureaucratic intentions of the state. In New York, representatives of fashion houses and garment manufacturers, their workers and union bosses all colluded to subvert the state’s labour laws and the restrictions they placed on working hours. In an industry that depended on flexibility in order to meet unpredictable demand, they built alternative patterns of relations based on trust, the return of favours and personal assistance. In each case, the state and its laws hovered in the background, a force that could have been invoked by any number of the participants, but in practice its presence was barely acknowledged. Social relations followed subtle patterns, which required the anthropologist’s patient questions to uncover. In this way, anthropologists let terms of comparison emerge from a detailed understanding of the cases in question. They study particular examples in order to identify what is common and what it is that varies in significant ways. This means going beyond the functionalist approach of comparative lawyers, who advocate starting with common social problems to ask how different legal systems deal with them (Zweigert and Kötz 1998).4 Instead of setting out to identify comparable cases or problems and explore differences between them, they let the terms of analysis and comparison emerge from an understanding of the cases in question (Pirie 2014; Creutzfeldt et al. 2016) Numerous collected volumes attest the cross-cultural relevance of different legal themes, including the role of law in transnational movements, globalization, property

3

  Interestingly, she did not conduct her own research in New York, but was able to rely on the information provided by contacts within the fashion industry. 4   This approach can still prove productive in anthropological studies, however (Mahy 2016).

48  Research handbook on the sociology of law relations, and human rights laws, institutions and practices (von Benda-Beckmann et al. 2005; von Benda-Beckmann et al. 2006; Goodale and Merry 2007, among others). In each case, anthropologists bring case studies from varied settings to the discussion. Others have opened up dialogues with historians to explore examples of law and legalism from across both time and space. They have found patterns in forms of community and the role of law in shaping them (Pirie and Scheele 2014). They have explored the use of rules and categories, identifying widespread patterns among legalistic social forms (Dresch and Scheele 2015). And they have examined the appeal of legalism in the regulation and negotiation of ethics (Clarke and Corran, forthcoming).

ANALYSIS AND ASSUMPTIONS Comparison also leads to what is possibly the most distinctive feature of anthropological studies, namely their ability to unsettle familiar assumptions about the social world. Anthropological research into family, religion and money, has revealed the extent to which those phenomena take a distinctive form in the West (Dresch and James 2000; Pirie 2013, Ch. 1). Elsewhere, people organise social relations in ways that do not fit neatly into those categories. This means that the researcher may not be able to apply the corresponding English term, at least not without significant qualifications, when describing other cultural or historical settings. These studies, in turn, warn us not to make universalizing assumptions about social forms that seem to be familiar and straightforward or to take for granted the applicability of the categories we use to refer to them. Law is one of these. One of the founding fathers of social anthropology, Bronislaw Malinowski, wrote a study of law and legal relations based on pioneering fieldwork he conducted among the inhabitants of the Trobriand Islands in the 1920s (Malinowski 1926). He was concerned to overturn the image, then held by many, that these ‘primitive’ people had no law, and unthinkingly followed their customs. He found that, in fact, they regulated their social order in subtle and complex ways. They had rules, often implicit, which they enforced through social sanctions, including the threat of exclusion. These norms, he concluded, were their ‘law’. But other early anthropologists were more circumspect in their use of the term. In his ethnography of the Nuer in Southern Sudan, also a non-literate people, Evans-Pritchard (1940) described the complex processes by which they resolved disputes and feuds. But he concluded that, ‘strictly speaking, the Nuer have no law’ (1940, 162). These cases forced scholars to reflect on the English language concept of ‘law’ and what it encompassed. Can there be law without governments, courts and officials? If so, is law found in the regulation of social order and enforcement of rules of behaviour, as Malinowski thought? Or is it something else that unites the things we commonly, and properly, refer to as ‘law’? These debates continued among legal anthropologists and took a new turn with the popularity of the concept of legal pluralism. Relying on Moore’s (1973) study of the ‘semi-autonomous social field’, the sociologist John Griffiths (1986) advocated research on the ways in which different types of law interact within a single social setting. The term took off among socio-legal scholars, as well as anthropologists, and in recent years it has

Sociology of law and legal anthropology  49 proved productive in research on the complex fields of international and transnational law (von Benda-Beckmann and Turner 2018). But a number of scholars quickly voiced criticism of the term, on the basis that it extends the concept of law to a wide class of social forms, to which it does not properly apply (Tamanaha 1993; Roberts 1998). They argued that this was analytically problematic and that scholars should restrict its use to the law of the state. The term continued to be popular and a number of influential legal and sociological theorists have explicitly called for a more ‘capacious’ concept of law than that with which legal theorists commonly, albeit often implicitly, work (Cotterrell 2006; Twining 2009). They argue that it draws our attention to non-state forms of law and the sheer variety of global legal forms, too long overlooked by legal scholars. But what does this mean for the use of ‘law’ as an analytic category? As others point out, it risks dissolving the distinctiveness of law as a class of social forms. Just as problematic, those who refer to ‘traditional’ and ‘customary’ forms of law risk misleading their readers about what are really negotiated, rather than legal, orders, ‘effacing what is distinctive about them’ (Roberts 2005; Pirie 2013, Ch. 2). This debate has hardly been resolved and scholars continue to discuss the ways in which the term ‘law’ should be used. But on each side of the debate, they make use of anthropological examples. Behind these debates lies the more general danger of taking the model of state law, developed in the Euro-American world from the eighteenth century onwards, and assuming that to the extent that law exists elsewhere, it must take a similar form.5 Anthropologists, along with historians, are well placed to unsettle such assumptions. The historian Patrick Wormald (1999) studied the laws made by the leaders of the Germanic people who swept into Europe following the collapse of the Western Roman Empire. Written in Latin, a language that few of their administrators would still have understood, many of these texts were little more than unsystematic, even illogical, lists of wrongs and penalties. Some provisions made little sense, others were inconsistent, and they can hardly have been useful to judges more accustomed to resolving disputes orally, and in circumstances where the word of the king was more important than any written document. But, rather than dismissing them as failed attempts at lawmaking, Wormald argued, we should understand them in terms of the aspirations of their authors. Lawmaking was one of the most prominent activities of the Roman emperors, not least Justinian, who had recently completed and published his Corpus Iuris Civilis to great fanfare in Constantinople. And the Germanic rulers had aspirations to be regarded as their successors. Legislation, he suggested, could be an exercise in image building (1999, 25). In a very different context, the anthropologist Brinkley Messick (1986, 1996) conducted fieldwork among the mufti, Islamic legal scholars, in Yemen. In the 1980s, many were still following traditional practices, entertaining requests for advice from individuals with legal problems. Their opinions told pious Muslims what to do in order to lead spiritually 5   This is the issue that many who advocate legal pluralism would claim they are addressing. However, as I have argued elsewhere (2013, Ch. 2), they often end up taking underlying assumptions about what law does – that it regulates society, maintains order and resolves disputes – to develop a more expansive notion of law. The problem is that law does not do these things everywhere, nor at all times. Legalism, as I have argued, provides a better, although not perfect, starting point for the cross-cultural exploration and comparison of law.

50  Research handbook on the sociology of law correct lives, especially when dealing with technical legal issues such as inheritance and property relations. Their opinions followed Islamic legal and religious norms. But they were mostly not directed towards any court case, or even a bargain conducted in the shadow of the court. Nor would the muftis’ opinions be enforced by any judge or government official. Here was law that did not regulate society directly, although people respected and sought out the advice of these scholars. Such studies of laws and legal processes by a historian and anthropologist, respectively, demonstrate that laws need not regulate societies in any practical ways, and nor need they form part of any system of government. They may even be practically unenforceable, but still thought to be important, giving guidance that individuals respect and follow. At the very least, detailed empirical case studies can present examples which force us to reconsider the assumptions we normally make about what law is and does. Must it be associated with the state? Does it always regulate social life? Is it inevitably used to resolve disputes? Conversely, must states always make laws and do people always look to law to organize their social lives and resolve their disputes? These issues have practical implications for law and policy makers. Lawyers, bureaucrats and politicians, as well as legal theorists, often assume that beyond the reach of the state people regulate their social lives according to customary ‘laws’. These must, they suppose, take the form of norms, which they apply to regulate behaviour and resolve disputes – the assumptions explicitly made by Malinowski. Following the end of apartheid, South Africa’s new leaders made strenuous efforts to reform the legal system in ways that would give due recognition to the customary ‘laws’ of their populations. They were aware that the legal regime of the former government had largely disregarded the traditional norms and sources of authority respected by many African communities. The 1996 constitution duly stipulated that the state’s courts ‘must apply customary law when that law is applicable’ (s. 211(3)). But in a number of high profile cases, the constitutional courts found it extremely difficult to ascertain what that ‘law’ was and how it could properly be applied to the case at hand (O’Regan 2013).6 The problem was that the ‘customary’ or ‘living’ laws of South African people were, and are, very different from the sorts of laws applied in the state’s courts. Researchers who studied practices of inheritance among Zulu populations, for example, and their experiences in the official ‘customary’ courts, found that, rather than explicit rules, inheritance practices depended on tradition, practices of negotiation and power relations, which revolved around local chiefs (Weeks 2011). Although, in the broadest sense, these could be described as ‘living law’, there was very little in the form of explicit rules which might be applied as ‘law’ in a court. It was difficult, if not impossible, to give effect to this ‘living law’ within the state’s legal machinery. The underlying problem is not so much that the South African courts are not flexible enough to recognize and apply this ‘law’. Rather, it is the assumption that traditional laws must be just as legalistic as the state’s laws, providing explicit and general rules, which can be applied by judges to adjudicate disputes. Those who try to recognize and apply ‘traditional’ laws in these ways run the risk of transforming a system that uses living principles in flexible and popular disputing processes into a rigid and authoritarian set

6   Some, like Diala (2017) conclude that the ‘living customary law’ needs to be better defined, rather than reconceptualized. But this is problematic, for the reasons set out here.

Sociology of law and legal anthropology  51 of laws. This ‘customary law’, as one anthropologist has commented, masquerades as stemming from African communities and pre-empts their more fruitful participation in this area of national life (Chanock 1985, 238–9). Better solutions could be found if we did not rush to find ‘law’ where, in fact, social life is regulated in different ways. In practice, legal anthropologists study many forms of law, social order and practices of conflict resolution. They explore social norms, relations of power and politics, race and diversity, and the many social processes that are shaped by laws in some way. Some of these are barely legal (Goodale 2017). That in itself is not a problem. The realm of the law is often entangled with other social forms and processes. But the South African example reminds us that the terms of analysis need to be chosen carefully. Anthropologists, with their diverse empirical examples, are well placed to warn against the misuse of analytic concepts in contexts to which they do not belong. And this includes the concept of ‘law’ itself.

CONCLUSION The field of legal anthropology is diverse. Some scholars maintain a tight focus on law, employing concepts such as ‘legalism’ to explore laws in different contexts. Others explore traditional and localized processes and settings, in which law and legalism barely play a role. Many engage with pressing contemporary themes, such as human rights, migration, and the use of indicators (Merry 2016). But both method and subject matter lead anthropologists to ask particular types of question. They seek to understand experiences, the ways in which different people perceive and understand the world around them and the meanings of legal ideas and practices, in all their complexity. When they examine national and transnational phenomena, they do so in local settings, whether migrants at a border post, workers in a sweat shop, or legal officials at their desks. They also engage in wide-ranging comparisons, noticing common social forms, practices and styles of legal behaviour that cross borders and cultural divides, often in unexpected ways. Of course, all these things can be done by sociologists of law, and they often are. Some scholars call for the deliberate ‘transgression of boundaries’ between anthropology and sociology of law, suggesting that scholars should make wider use of ethnography (Bens and Vetters 2018). But the field of the sociology of law is, itself, diverse. Other scholars undertake different sorts of studies, using focus groups, wide-ranging surveys and quantitative analysis to ask different types of questions and explore other social patterns and continuities. It is important to recognise the diversity of methodological approaches that can be taken by social scientists to the study of law. Moves towards homogeneity hold as many dangers as maintaining over-rigid boundaries between disciplines. Although its methods and approaches may be adopted by other scholars, then, just as anthropologists take inspiration from other fields and methods of study, anthropology is different in many ways. Rooted in a distinct methodology, legal anthropology produces studies that are complex and detailed. It invites cross-cultural comparison and reveals unexpected patterns, as well as discontinuities. Above all, it encourages both sociologists and legal theorists to question common assumptions about what law is and does.

52  Research handbook on the sociology of law

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Sociology of law and legal anthropology  53 Messick, Brinkley. 1996. ‘Media Muftis: Radio Fatwas in Yemen’. In Muhammad Khalid Masud, Brinckley Messick and David S. Powers (eds). Islamic Legal Interpretation: Muftis and Their Fatwas. Cambridge, MA: Harvard University Press. Moore, Sally Falk. 1973. ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’. Law and Society Review 7, 719–46. Nader, Laura. 1979. ‘Disputing Without the Force of Law’. Yale Law Journal 88, 998–1021. Nader, Laura (ed). 1980. No Access to Law: Alternatives to the American Judicial System. New York: Academic Press. Nelken, David. 2010. ‘Using Legal Culture: Purposes and Problems’. Journal of Comparative Law 5(2), 1–39. O’Regan, Kate. 2013. ‘Adjudicating a Constitutional Paradox’. Constitutional Court Review 6, 105–26. Pirie, Fernanda. 2008. Peace and Conflict in Ladakh: The Construction of a Fragile Web of Order. Leiden: Brill. Pirie, Fernanda. 2013. The Anthropology of Law. Oxford: University Press. Pirie, Fernanda. 2014. ‘Comparison in the Anthropology and History of Law’. Journal of Comparative Law 9(2), 88–107. Pirie, Fernanda and Judith Scheele (eds). 2014. Legalism: Community and Justice. Oxford: Oxford University Press. Povinelli, Elizabeth A. 1993. Labor’s Lot: The Power, History, and Culture of Aboriginal Action. Chicago: University Press. Povinelli, Elizabeth A. 2002. The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism. Durham, NC: Duke University Press. Riles, Annelise. 2000. ‘The Transnational Appeal of Formalism: The Case of Japan’s Netting Law’. Stanford/ Yale Junior Faculty Forum, Research Paper 00–03. Riles, Annelise. 2011. Collateral Knowledge: Legal Reasoning in the Global Financial Markets. Chicago, IL: University Press. Roberts, Simon. 1998. ‘Against Legal Pluralism: Some Reflections on the Contemporary Enlargement of the Legal Domain’. Journal of Legal Pluralism and Unofficial Law 42, 95–106. Roberts, Simon. 2005. ‘After Government: On Representing Law Without the State’. Modern Law Review 68, 1–24. Rock, Paul. 1993. The Social World of an English Crown Court: Witnesses and Professionals in the Crown Court Centre at Wood Green. Oxford: Clarendon Press. Tamanaha, Brian. 1993. ‘The Folly of the “Social Scientific” Concept of Legal Pluralism’. Journal of Law and Society 20, 192–217. Thomas, Kedron. 2016. Regulating Style: Intellectual Property Law and the Business of Fashion in Guatemala. Berkeley, CA: University of California Press. Twining, William. 2009. General Jurisprudence: Understanding Law from a Global Perspective. Cambridge: University Press. Weeks, Sindiso Mnisi. 2011. ‘Securing Women’s Property Inheritance in the Context of Plurality: Negotiations of Law and Authority in Mbuzini Customary Courts and Beyond’. Acta Juridica, 140–73. Wormald, Patrick. 1999. Legal Culture in the Early Medieval West: Law as Text, Image and Experience. London: Hambledon Press. Zweigert, Konrad and Hein Kötz. 1998. An Introduction to Comparative Law. Transl. By T. Weir. 3rd ed. Oxford: University Press.

5. Ethnography and law in a transnational world: knowledge, power and discourse Anne Griffiths

Ethnography is both an epistemological approach and methodological tool that is used to generate knowledge and understanding about subjects of social research. It is a way of seeing and doing that leads to the production of data about the subjects of the research and the meanings that they attach to the diverse worlds in which they live. It involves direct engagement with research subjects through sustained fieldwork that involves ‘watching what happens, listening to what is said, asking questions in order to provide an in-depth account of human experiences in the area of study’ (O’Reilly 2005, 3). Such engagement entails participant observation, comprising ‘long term involvement in the routine, everyday worlds of others’ (Manning 1987, 70) through immersion in fieldwork. It represents a way of doing research that is not confined to sociology, but is found in other disciplines, such as anthropology, so that its history is multi-faceted, drawing on a whole range of techniques that make it impossible to present ethnography in terms of a single, methodological approach. This leads the editors of the four volumes on Contemporary Approaches to Ethnographic Research to observe that it is better ‘to think of “ethnographies” rather than any single or simple approach or method’ (Hughes et al. 2018, xxv).

DISCIPLINARY TRAJECTORIES The ethnographic trajectory has differed according to the discipline with which it is associated. Thus, in anthropology the initial focus was on research subjects in the global south and how they ordered or regulated their social life. This was important to scholars coming out of the Enlightenment tradition, who were interested in the study of human development that required comparative research. This was in order to create a universal and evolutionary model of law that marked the transformation from ‘primitive’ to ‘civilised’ societies across human history. Such research gave rise to the classic ethnographies associated with anthropology that were embedded in colonial or neo-colonial relationships (Darian-Smith 2004). It involved extensive fieldwork of the type promoted by Malinowski (1922, 11) who argued for the generation of data on ‘the full extent of the phenomena studied, making no difference between what is commonplace or drab, or ordinary and what strikes him as astonishing and out of the way’. Such an approach enabled him to challenge the assumption that to talk in terms of law required institutions resembling courts that were alien to the Trobrianders he studied. For he utilised this approach to define law according to its function, to ‘make for order, uniformity and cohesion (1926, 2)’ that was embedded in the principle of reciprocity in Trobriand social life. 54

Ethnography and law in a transnational world  55 In acknowledging that practitioners of anthropology do ethnography, Geertz (1973, 5–6) observed that: . . . it is in understanding what ethnography is, or more exactly what doing ethnography is, that a start can be made toward grasping what anthropological analysis amounts to as a form of knowledge. This it must immediately be said, is not a matter of methods. From one point of view, that of the textbook, doing ethnography is establishing rapport, selecting informants, transcribing texts, taking genealogies, mapping fields, keeping a diary and so on.

However, he then observes: But it is not these things, techniques and received procedures that define the enterprise. What defines it is the kind of intellectual effort it is: an elaborate venture in . . . ‘thick description’.

From a sociological perspective, ethnography was brought into prominence by the University of Chicago, Sociology Department. The ‘Chicago School’, as it became known, largely refers to research conducted between 1917–1942 by students of Robert Park and Ernest Burgess, that focused on urban life as a driver of social change. Their approach viewed field research and observational methods as ‘a key to understanding the natural ecology of Chicago’ (Rhodes 2011). As Deegan (2001, 11) has observed, ‘these ethnographies studied face to face interactions in specific locations. The descriptive narratives portrayed “social worlds” experienced in everyday life within a modern, often urban context.’ In upholding first-hand observation as the key to ethnography, Robert Park admonished his students in the 1920s to ‘Go sit in the lounges of luxury hotels and on the doorsteps of the flop houses . . . go get the seat of your pants dirty in real research’ (cited in Brewer 2000, 13). At a later state, a ‘second Chicago school’ emerged in the 1950s, which flourished in the 1960s and 1970s, whose members used symbolic interactionism combined with methods of field research to create new bodies of work. While not based at Chicago, this research derived its impetus from there through the work of Becker, Geer, Strauss and later work of Hughes and his students, and the emergence of the ‘dramaturgical approach’ found in Goffman, Duncan and Burke. The ‘grounded theory’ approach associated with qualitative research promoted by Glaser and Strauss (1967) marked a growing discontent with the dominance of positivism and experimental methods throughout the social sciences. It provided an alternative form of knowledge that was not dependent on large-scale surveys or predetermined theories and models for setting the research agenda. Over time, this qualitative type of research embodied in ethnography expanded to cover a whole range of new fields, including education, nursing and health studies, business and the organisation of work, science and technology, human geography, social psychology, and cultural and media studies. This development led the editors of the journal Urban Life to rename the journal as the Journal of Contemporary Ethnography in 1987. This was because, although ‘much of the old journal (. . .) dealt with urban studies’, for the editors ‘the focus was really not on urban, but on a distinctive way of studying social phenomena. It was this focus we wanted the new name to reflect’ (Adler and Adler 1987, 5).

56  Research handbook on the sociology of law In making this move, the editors observed that they aimed to ‘expand the journal’s reach interdisciplinarily’ while still ‘retaining a base in sociology’ in order to facilitate integration ‘between ethnographers separated by theoretical, disciplinary, national and substantive boundaries’ (Adler and Adler 1987, 5). In doing so ‘we want to encourage the empirical focus on rich, textured, ethnographic data’. For ‘researchers who offer dense and “thick” (Geertz 1973) description provide a picture that represents their members’ perspectives on the structure, experiences and meanings of their social worlds’ (Adler and Adler 1987, 5–6). This approach, which is primarily qualitative rather than quantitative in nature, stands in contrast to positivist approaches to schemas or normative theories of social life based on the objective nature of ‘truth’.

ENGAGING WITH LAW AND LEGAL PLURALITY Law forms an integral part of social life and its power in regulating the social, economic and political life of society is widely acknowledged, giving rise to contestation over how it is constituted, legitimated and interpreted. As the contributors to this volume demonstrate, polities and persons’ access to, and use of, law raise questions about its power and authority to construct meaning at multiple levels. How law is perceived, however, depends upon the criteria that are applied to its recognition, giving it legitimacy. These vary, creating differing models of law that play a crucial role in formulating matters of jurisdiction, authority and legality across a wide range of domains. They include dealing with human rights abuses, promoting sustainable economic development, conserving the environment and regulating security of tenure. How law is, and should be, formulated has been hotly debated within fields such as sociology, anthropology and legal theory. This is because its constituent features represent diverse and often contested perspectives. These range from the recognition of differing legal orders within nation states, to a broader more open-ended concept of law that does not depend on state recognition for its validity. They span a continuum, which varies according to the centrality that is accorded to state law. In dealing with legal pluralism, the state-centred approach to law is often referred to as a ‘juristic’, ‘ weak’ or ‘classic’ model of law (Griffiths 1986), associated by Griffiths with a lawyer’s view of law, representing a western, positivist or formalist model of law. The state-centred paradigm of law developed out of the Peace of Westpahlia (1648) that ended the Thirty Years War in Europe. It is founded on the notion that within its territory a state is sovereign. Under this model, which embraces a separation of powers between the executive, legislature and judiciary, the state claims jurisdictional sovereignty within its borders that is governed by law. Thus law derives its authority and legitimacy directly from the state through a rigorous exposition of doctrinal analysis (law as text) founded on a specific set of sources (statutes, cases), institutions (courts) and specialist personnel (lawyers, judges). It represents a positivist and rational form of law associated with Bentham and Weber, discussed by Miola and Piccitto in this volume. It is worth noting that at the time that law and anthropology were emerging as fields of study, they were required to establish their provenance through claims to rationality and objectivity that would give them the equivalent status of a scientific discipline. As a result, both disciplines have at times embraced a positivist approach to knowledge.

Ethnography and law in a transnational world  57 Such a positivist perspective on law allows it to assert a monopolistic approach to power by rejecting all other models of ‘law’ that do not adhere to its requirements. Through its exclusionary authority it lays claim to universality across time and space that has a global reach. In contrast, the ‘new’, ‘strong’, or ‘deep’ model of legal pluralism (Griffiths 1986) reflects a more contextual approach to law that is associated with a social scientific view of law. It is one that engages with empirical data, a key feature of which has been the production of a large, diverse and rich ethnography that has developed out of fieldwork (Griffiths 2002; 2005). This has been used to situate law within a broader social compass, exploring its relationship with other bodies, institutions and agencies that construct social relations, such as families, religious groups, non-governmental organisations and community associations. As Pirie observes in this volume, it is the use of fieldwork and ethnography that distinguishes anthropology from other disciplines, facilitating an analysis of the specific, lived, everyday experiences and perceptions of law that inform people’s lives. This approach, in contrast to a state-centred, dominant legal discourse, opens up avenues for discussing what constitutes a legitimate focus for legal inquiry. Geertz (1983, 170–1) observed that ‘law and ethnography are crafts of place: they work by the light of local knowledge . . . absorbed with the task of seeing broad principles in parochial facts’. From this social scientific, epistemological and methodological perspective, scholars, such as anthropologists and sociologists, have challenged western notions of what constitutes a legal domain in a number of ways. These include moving beyond an institutional perspective and rule-based formulation to incorporate views of ‘law as process’. They also involve adopting actor-oriented perspectives that interrogate who is ‘inside’ and ‘outside’ law, highlighting the frontiers of legality. As a result, the voices of those who are rendered invisible or excluded from the terrain of state law become visible. Viewing law from this perspective is especially important when dealing with the impact of colonialism and its approach to other forms of law existing in colonised countries that continues to leave a legacy in postcolonial states.

TRANSNATIONAL DIMENSIONS OF LAW Such approaches to law are critical in today’s world where the increasing proliferation of international and transnational regulatory frameworks, norms and legal rules have given rise to ‘the epochal transformation we call globalization’ (Sassen 2008, 2). This is reflected in the transnationalization of personal, economic, communicative and religious relations that give rise to conditions of legal flux (Benda-Beckmann et al. 2009a and b). Such processes, in which local, national and international regulatory domains are enmeshed, reconfigure law both within the nation state and beyond its boundaries so that there is now a growing acceptance ‘that there may be sources of law other than that of the nation state’ (Benda-Beckmann et al. 2009a, 1), and that there is a need to ‘think ourselves beyond the nation’ (Appadurai 1990, 337). While law has always been mobile and globalization of law is not a new phenomenon, there is a recognition of a broader conception of governance that forms part of what Cottrell and Trubek (2012, 362) have termed global space. This refers to ‘an evolving regulatory

58  Research handbook on the sociology of law environment created by globalization and the increasing role international norms play in domestic settings.’ It is a space that ‘blurs the general divide between internal and external state sovereignty, with states increasingly pooling capacity in international organizations at the expense of their mutually exclusive and often divided internal sovereignty’ (Walker 2014, 13). Under these conditions it is necessary to acquire an understanding of how these processes work, to find out how law is imbricated in chains of interaction connecting transnational, national and local arenas. This involves acknowledging the extent to which law is embedded in broader social and political claims at particular moments in history. What emerges from this type of investigation is the highly mobile and contingent nature of law under conditions of legal pluralism that are constantly in the making. The importance of approaching law from this perspective is that it does not limit discussion of law to bounded fields where the co-existence of state and international and transnational law is viewed from a hierarchical, top-down perspective of the kind that has featured in many studies in legal and political science. Nor is law to be cordoned off from other disciplines, as Cloatre and Pickergill demonstrate in their discussion of law and science in this volume. Instead of treating these entities as independent objects of analysis, they argue for an analysis that takes account of their interaction and ‘interrelationaility’.

THE PRODUCTION OF KNOWLEDGE, REPRESENTATION AND MEANING IN ETHNOGRAPHY Ethnography may provide another perspective on law which differs from those based upon abstract, normative legal theory, but it has also been criticised for its claims to knowledge and representation. Clifford and Marcus (1986) and Marcus and Fischer (1989), among others, have challenged the ways in which anthropologists have constructed anthropological texts to establish ‘ethnographic authority’. Wilmsen (1989) has criticized the practice of ethnography as removing selected parts of social context from its social formation, resulting too often in a form of cultural essentialism. To avoid this, some scholars have adopted an interpretive and reflexive approach that explores how the production of knowledge and representation can involve ‘the native’ in a dialogical and multivocal process (Clifford and Marcus 1986; Clifford 1988). Such an approach, however, also has its critics who argue that ‘the specific destination and form of reception of that representation is usually not addressed, or is assumed to be the same as that of the anthropologist’ (Yang 1996, 107). It has been noted that ‘if cultural others are to be contrasted with us to make a critical point they must be portrayed realistically and in the round, sharing modern conditions that we experience also’ (Marcus and Fischer 1989, 162). This approach, however, has also been criticised on the basis ‘that western interest in cultural others acts only as a foil to the West, as a strategy of defamiliarization and cultural critique of western societies’ (Ong 1996, 61). A key concern is one of voice; who has the authority to speak for whom in this representation of knowledge. Feminist scholars have long been critical of the ways in which mainstream legal discourse fails to take adequate, if any, account of women’s voices, practices and experiences in its analysis of law that refuses to acknowledge the

Ethnography and law in a transnational world  59 gendered world in which women and men live. Yet liberal western feminist jurisprudence has been taken to task for failing to take adequate account of the voices, views and needs of women of colour by making one assumed cultural set of standards universal or, rather, appropriating the power of one particular standpoint to speak for all (Abu Luhgod 1998, 14). Indeed, western feminists’ views have been labelled a form of ‘colonial feminism’ (Ahmed 1992) because their essentialist tendencies have much in common with forms of colonial discourse (Abu-Lughod 1998, 14). Both provide examples of Said’s orientalism in that they represent a view of the world where western beliefs, values and laws are used as a touchstone for framing and interpreting knowledge about other societies, and judging them accordingly. Such critiques go to the heart of the research enterprise. They require investigating the basis upon which claims to knowledge are based and perceived. Some sociologists, primarily those who adopt a positivist stance to sociology, are critical of ethnography because they view it as a flawed enterprise that fails to be rigorous enough in its study of society that should derive from ‘scientific evidence’. This is because ethnography is too qualitative to be able to make generalized observations about society, prone to personal bias, and lacks the methodological tools to reveal the ‘objective truth’ of what is being studied (Hughes et al. 2018). Such a positivist perspective stands in marked contrast to a reflexive, interpretive approach associated with ethnography.

CRITICAL PERSPECTIVES ON ETHNOGRAPHY The very ‘hands on’ approach promoted by fieldwork that underpins ethnography, however, is open to question. Despite the authorial ‘I’ that is favoured in ethnography, denoting a more experiential and relational connection with fieldwork and the collection of data, it is as constructed and abstracted from its social context, through its depiction of the detached, historically unsituated observer as the third-person pronoun that is favoured in conventional legal studies. For ethnographic writing is not just simply writing up a report, it creates what Strathern (1999, 2) has termed a ‘second field’. These fields involve observation in the field followed by reflective analysis out of the field at a later date. The effect of bringing these two fields together, that is observation and analysis, creates the ‘ethnographic moment’ (Strathern 1999, 6) associated with anthropology. It works as an example of a relation which joins the understood (what is analysed at the moment of observation) to the need to understand (what is observed at the moment of analysis). Thus, the ideas and narrative which made sense of everyday field experience have to be rearranged to make sense in the context of arguments and analyses addressed to another audience. In this relationship, theory and data have an ‘iterative-recursive relationship’ (Cheesman 2018, 177) that runs counter to research that is based on predetermined models and theories. In adopting this approach, the investigator does not know at the outset the full range of factors which are going to be relevant to the end analysis, nor the full range of analyses which are going to be relevant to comprehending the gathered field notes. For s/he has no idea what will prove in retrospect to be significant; for significance is acquired through subsequent writing, through composing the ethnography as an account after the event.

60  Research handbook on the sociology of law This can prove problematic for, as Moore (1994b, 365) observes, ‘events situate people in an unedited and “preanalyzed” context, before the cultural ideas they carry and the strategies they employ are extracted and subjected to the radical reorganization and hygienic order of the anthropologist’s analytic purpose’. As a result, what is presented as a seamless account in the ethnographic present, in fact represents a selective rendering of events and analysis where the power of representation lies with the researcher. As Okely (1992, 13) notes, ‘informants voices, however many direct quotations are included, do not penetrate the ethnographer’s discursive speech’. What is hidden ‘is how the changing daily relationship and experience give sense to an accumulation of illustrations forming a coherent whole’ (Okely1992, 14). Thus the ethnographer cannot be viewed as a neutral observer, operating simultaneously both inside the field of inquiry as participant observer, and outside as disinterested scientist. What must be recognised is the structured inequality of power relations that allow researchers to subsume their subjects in representation through a methodological process inherent in the fieldwork and post-fieldwork process. It highlights the need to interrogate the dichotomy between ‘home’ and ‘the field’ and to examine the ways in which they are economically, politically and culturally interdependent.

REFRAMING ETHNOGRAPHY Yet, whatever ethnography’s failings, Moore (1994a, 80) has cautioned that it is a ‘huge polemic leap from recognizing the existence of an important blind spot to arguing that there is a total incapacity to see’. What is required is another way of conceiving the relationship between researchers and research subjects. Dwyer (1977, 147) observed many years ago that field work ‘is confrontation and dialogue between two parties involved in a joint creation of otherness and selfness’. For ‘“we” do not speak from a position outside “their worlds” but are implicated in them too through fieldwork, political relations, and a variety of global flows’ (Narayan 1997, 29). According to Hastrup (1992, 117), the peculiar reality of the field, ‘is not the unmediated world of the “others” but the world between ourselves and others’. It is ‘this interpersonal, cross-cultural encounter that produces ethnography’ (Clifford 1982, 143). In this process of ‘dialogue, we talk across established difference and create a world of betweeness’ (Tedlock 1983, 323–4). Thus knowledge ‘is not transcendental, but is situated, negotiated and part of an on-going process . . . [that] spans personal, professional and cultural domains’ (Narayan 1997, 37). In this process knowledge is not fixed, but relational. To mark this recognition of ethnography Narayan (1997, 22) argues for more hybridity in ethnographic texts, ‘that is writing that depicts authors as minimally bicultural in terms of belonging simultaneously to the world of engaged scholarship and the world of everyday life’. By putting the perspective of the social analyst up front and into the text, along with narratives from or about people studied, the position of the author becomes more visible. This type of positioning represents a form of situated knowledge (Hastrup 1992) ‘where partiality and not universality’ is the basis for knowledge claims (Haraway 1991, 195). It highlights how researchers are situated in relation to the people they study, forcing them to acknowledge their ‘representation as positional, partial and constitutive of reality’ (Callaway 1992, 33).

Ethnography and law in a transnational world  61 This perspective makes clear that one position or form of knowledge cannot be privileged over another (unlike state-centred, formalist narratives of law). Such a shift moves away ‘from an observational and empirical methodology to a communicative and dialogical epistemology’ (Scholte 1987, 35). It allows the ethnographer to be ‘witness to the active construction and challenging of relationships, meaning, categories, patterns, systems, orders (…) and their transformation and undoing as well’ (Moore 1994b, 362). This ‘lived experience’ can be harnessed to provide a more contextualized understanding and analysis of law. One that not only provides a more concrete perspective on the social dynamics of legal pluralism in a transnational world, but one that also, through the practice of fieldwork, opens up new and unanticipated horizons for study.

NEW ORIENTATIONS AND CHALLENGES: RECONCEIVING RELATIONSHIPS AND ‘THE FIELD’ Such an approach is well oriented to comprehending the world of global assemblages, with their complex array of networks and actors. For it pays attention to how one delimits the ‘field’ and its asymmetries, and to what gets selected for attention in the study of assemblages in which the technical and the social meet, mingle and multiply. Part of this process has involved expanding the scope of ethnography to become ‘multi-sited’ or ‘deterritorialized’, following people or objects from one place to another. The kind of multi-sited research that is called for today involves a broad landscape, one that encompasses not only diverse spaces unconfined by conventional territorial or geographic markers, but also such areas as ‘information’ flows encompassing the internet and global conferences, or world media in its diaspora. In these processes new techniques become applied in the ethnographic context. Thus Greenhouse (2009), in studying the implementation of the Military Order in the USA in 2001, which established military tribunals for non-citizens charged with terrorism, had to develop interpretative resources that were not based on direct personal, or face to face, contact. Instead, she immersed herself in the text of the Order and, through following ‘discursive trails’ and ‘career pathways’, she was able to engage with the larger terrains of discourse circulation and opposition that are not actually accessible from the text itself. This was because the discursive trails focused on commentaries in the media, especially on those that promoted the Military Order. These reports, taken together with the career pathways of the commentators themselves, enabled her to elucidate the broader context of values in which the Military Order should be understood. Such an approach is important because it ‘challenges us to rethink the ethnography of law from the standpoint of executive power, while simultaneously revealing something of the nature of those challenges’ (2009, 33). The ethnographic endeavour constantly takes on new forms and faces new challenges. What to do, for example, where there is no easily discernible ‘social field’? Zabusky (2002) highlights the problems posed in the study of the space science mission development in Europe, where the world of decision-making is ephemeral. Or, how to approach ethnographic research that is ‘unsited’ or represents ‘nonplace’, such as in ‘the world of consumption and hyper reality where places and spaces are artificial and themed to pay tribute to the reality of spaces they replace’ (Hughes et al. 2018, xxviii)? So, while

62  Research handbook on the sociology of law participation in research and observation remain part of ethnography, what has changed are the ways in which researchers carry out these activities. Bens and Vetters (2018, 249) argue for a new, interdisciplinary and collaborative approach to law on the grounds that the ‘ethnographic endeavour is a fruitful point of convergence to make both empirically grounded and theoretically ambitious contributions to the investigations of law, culture and society beyond disciplinary boundaries’. Vine (2018, 405) has observed in the wake of climate change Californians are carrying out ‘experiments in the ecologies of everyday life’. For Vine (2018, 405) ‘rather than analysing these experiments as practices or recovery, we can better understand them as attempts to cultivate alternative ways of feeling at home in the Anthropocene’. This involves a new way of perceiving how humans are situated in the world that requires delving into relations ‘among aesthetics, ethics, and affect’ in order to comprehend them ‘as their [humans] primary site of improvisation and innovation’ (Vine 2018, 405). An area of expanding research in recent years involves the use of drones that are no longer the exclusive property of the military or financially power actors. Thus drone technology can be put to work for communities, in activities such as monitoring for land grabs, dealing with traffic congestion and accidents, overseeing ancient sites for protection of their artefacts, and transporting human organs between hospitals to provide for quick service delivery in an overcrowded city. Radjawali and Pye (2017), for example, discuss the potential use of drones in generating GPS-referenced maps that can be used to support local communities’ land rights against the activities of palm oil and mining companies in West Kalimantan, Indonesia. They observe (2017, 17) that while this provides for ‘more inclusive technology’, this is not enough in itself, as there is always the question ‘who controls the technology and to what end’, which can never be divorced from politics. This can give rise to new approaches to research, such as that carried out by Garret and Anderson. Their collaborative work as a physical and human geographer reveals ‘how recent scholarship on vertical geographies and longstanding remote-sensing frameworks are challenged by drone methodologies where social environmental and technological concerns are entangled with the politics of access to proximal air space and, in doing so, define a new conceptual atmospheric zone . . . the “Nephosphere”’ (Garrett and Anderson 2018, 341). Digital technology, however, is not just another ethnographic tool. It is ‘not simply a means of ethnographically investigating a particular arena of social life’, but involves ‘growing recognition of the growing mediatising of social life’ where engaging the online community ‘is increasingly a regular part of people’s everyday lives’ (Hughes et al. 2018, xxv). As Adams-Hutcheson and Longhurst (2017, 148) note with regard to interviews on skype, these involve ‘bodies, performance, digital interfaces, movement, senses, emotion and affect’, all of which ‘need to be grappled with methodologically as increasing numbers of researchers turn to online interviewing’. Thus, there is no simple, straightforward relationship that can be deduced between persons and the technology they engage with. For as Murphy and Maguire (2015, 171) observe in the domain of automated European border control, ‘research including perspectives drawn from situated knowledge together with perspectives drawn from direct attention to apparatuses are of immense value in illuminating particular dimensions of border control today’. This is precisely because such research ‘explores the emergent techno-social conversation between bodies, templates and technology’ (2015, 173).

Ethnography and law in a transnational world  63

CONCLUDING OBSERVATIONS Given the complexity and diversity of research associated with ethnography there can be no single depiction of what ethnography is. Nonetheless, Hughes et al. (2018, xxiv) observe that there appears to be some consensus that ‘ethnography is a collection of techniques and approaches that facilitate a sustained research engagement with a particular human collectivity – one which typically involves blends of systemic observation and reflexive inquiry’. This chapter has focused on approaches to ethnography that demonstrate the need to move away from a pre-established standpoint that treats groups of actors and social entities as reflecting internally coherent and bounded sets of domains that are geared to addressing a pre-determined object. Instead, they highlight the need for a more relational aspect, one that explores relations between actors and entities or domains in ways that forefront the interactive dynamics that are constantly at work in these relationships. This gives rise to an understanding of how such relations may be mutually constituting, reconstituted or reconfigured over time. This kind of ethnographic inquiry makes for a more nuanced and complex understanding of how law works in a multi-dimensional world at many levels. It provides another perspective on the relationship between law and power from the one promoted by formal legal analyses, through a contextual approach that moves beyond the confines of conventional legal discourse. In doing so, it provides an opportunity to makes visible what might otherwise remain hidden from view; that is, the factors giving rise to inequality and social differentiation in all of their varying manifestations.

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Ethnography and law in a transnational world  65 Tedlock, Dennis. 1983. The Spoken World and the Work of Interpretation. Philadelphia: University of Pennsylvania Press. Vine, Michael. 2018. ‘Learning to Feel at Home in the Anthropocene: From State of Emergency to Everyday Experiments in California’s Historic Drought’. American Ethnologist 45(3), 405–16. Walker, Neil. 2014. Intimations of Global Law. Cambridge and New York: Cambridge University Press. Wilmsen, Edwin N. 1989. Land Filled with Flies: A Political Economy of the Kalahari. Chicago and London: University of Chicago Press. Yang, Mayfair. 1996. ‘Tradition, Travelling Theory, Anthropology and the Discourse of Modernity in China’. In Henrietta L. Moore (ed). The Future of Anthropological Knowledge. London and New York: Routledge, 93–114. Zabusky, Stacia E. 2002. ‘Ethnography in/of Transnational Processes: Following Gyres in the Worlds of Big Science and European Integration’. In Carol J Greenhouse, Elizabeth Mertz and Kay B Warren (eds). Ethnography in Unstable Places: Everyday Lives in Contexts of Dramatic and Political Change. Durham, NC: Duke University Press, 117–45.

6.  Sociology of law and economy Iagê Miola and Sol Picciotto

A focus on law’s role in economic activities was central to many classical sociologists, and it remains a key theme in the sociology of law, although no longer central. Much of this is due to the divergence between sociology and economics, especially since the emergence of neo-classical economics. From the end of the nineteenth century, mainstream economics and sociology both increasingly distanced themselves from their origins in the political economy of the enlightenment. This also separates both from law, which is tied to politics and the state, and so has long been a focus for political philosophy. Hence, the challenge for contemporary sociology of law in the economy is to restore a more holistic perspective that also includes political economy (Britton-Purdy et al. 2020). This chapter begins by considering how the view of capitalism as a market economy is reflected in the formalist perspectives of neo-classical economics and legal positivism, largely echoed in Max Weber’s sociology of law, and the limitations of these understandings. The second section outlines the extensive institutionalisation of economic activity due to the shift to corporate capitalism since the last part of the nineteenth century, and the increasing attention from economic sociologists and institutional economists to law’s role in these processes. The third section discusses the neo-liberal phase since the 1970s, with a renewed emphasis on property rights and market-based management, but accompanied by an enormous growth of new forms of regulation, often of a hybrid public-private character, leading to a new view of law as reflective or responsive. The final section argues that law’s role in the economy can be better understood by examining the social processes of lawyering, mediating between the realms of political and economic power, through practices of legal interpretation that both reflect and shape economic activity.

MARKETS, THE LAW AND PROPERTY RIGHTS Capitalism is generally thought of as a market economy, but often with little consideration of what this means. Mainstream neo-classical economics focuses on the operation of markets, not by studying real-life markets (Hodgson 2015, 129), but as an abstract model in which transactions are assumed to take place between economic actors based on their rational preferences (utilities) and with full information. Its unrealistic assumptions are highly simplifying abstractions needed for the elaboration of models that analyse ‘the economy’ as a formal system which is internally coherent. From this perspective, law’s function is to facilitate and support free markets, particularly by guaranteeing the fulfilment of agreements. However, mainstream economics recognises that the state and law also have a role in cases of ‘market failure’, which are of two broad types. First, imperfect markets, due to imbalances between contracting parties such as monopoly or asymmetric information, can be remedied through measures 66

Sociology of law and economy  67 aimed at restoring competition. Second, government action may be justified for wider social welfare due to ‘externalities’ or social costs, when transactions create costs (or, more rarely, benefits) beyond the parties concerned. This gives rise to public economics, analysing the efficiency of government action; for example, aimed at providing ‘public goods’ such as education. Such a system is also regarded as the ideal for liberal capitalism, since markets are considered to require minimal state intervention, allowing decentralised decisions by free individuals. Hence, the sphere of exchange was described by Marx as ‘the very Eden of the innate rights of Man’: ‘There alone rule Freedom, Equality, Property and Bentham’ (Marx 1887, 123). Indeed, Bentham’s liberal political and legal philosophy of utilitarianism (‘the greatest happiness of the greatest number’) predated the emergence of neoclassical economics. His ‘legal positivism’ viewed law as commands, forming a closed and coherent system in which decisions can be made by logic without reference to external factors such as morality or politics. This closed formal system mirrors that of the neo-classical economists’ model of the economy. From a sociological perspective, Max Weber analysed the type of law that emerged with, and shaped, the development of, capitalism. Like Bentham, he described this type of ‘formal rational’ law as creating a normative framework for the interactions of individual legal subjects, disregarding their social or political status, through specialists who apply abstract and neutral rules by ‘the logical analysis of the meaning of the legal propositions’ (Weber 1978/1921, 656–7). For Weber, modern law under capitalism serves to provide certainty of the fulfilment of legitimate expectations; particularly, that promises will be kept. However, he also pointed out that legal rights grant power, backed by the state’s monopoly of legitimate coercion, which he classified as ‘the rights of individuals to prescribe, or prohibit, or allow, an action vis-à-vis another person’ (Weber 1978/1921, 667). This perspective underlies the policy prescriptions in recent years of organisations such as the World Bank on the role of law in economic development. The emphasis is on providing certainty and predictability for private economic transactions, especially investment, through a formal legal system that can guarantee the enforcement of individual rights without influence from external political, economic or social factors. The state should ensure the ‘rule of law’ and be ‘market-friendly’, limiting its interventions to remedying ‘market failures’ (World Bank 1997). The state, and therefore law, play an important part in establishing the preconditions for markets. Key to this is the creation and guaranteeing of private property rights, as fervently advocated, for example, by economist Hernando de Soto. Indeed, it is the definition of property rights by state action that sets the conditions for economic activities which take the form of exchange between equal transacting parties. Hence, capitalism as a system of generalised production and circulation of commodities is based on state action and coercion, especially to create, maintain and define property rights. Thus, political power creates and maintains economic power, with law continuously mediating the relationship between the two. These are rights to appropriate, referred to by Weber as ‘the power to control an object or a person’ (Weber 1978/1921, 667), recognising that they entail a power relation backed by the state. Although property is commonly objectified as a thing, for both lawyers and economists it entails a bundle of rights between persons, often in relation to things. Property rights are often seen as ‘natural’, perhaps stemming from the attachment of

68  Research handbook on the sociology of law individuals to their personal possessions, although private property goes well beyond personal property. Private property confers the right to exclude others from benefiting from an asset, and economists consider this to be justified for goods that are ‘rivalrous’ (if enjoyment by one person reduces the ability of another to enjoy it). However, rivalrousness is always relative due, ultimately, to the social character of economic activity (Picciotto and Campbell 2003, 280–1). Hence, there is a wide spectrum of excludability, and different rights also interact. Economists accept that inequalities in ownership of property underlie social inequalities, but not that they affect the efficiency of markets. Indeed, the continual extension of private property rights is seen as promoting economic efficiency, by widening the scope of transactional decision-making. This can be seen in much of the work in ‘law and economics’ since the 1970s, developed by the ‘Chicago School’, led by lawyer Richard Posner (Posner 2014 [1972]) and economist Gary Becker. Work in this vein generally applies market-based economic analysis to legal institutions, to consider how they could be made more ‘efficient’. It also depends on the theory that private property rights encourage more efficient use of resources by enabling market transactions to internalise the costs of managing them (Demsetz 1967). Hence, allocating private property rights is considered superior to shared use of natural resources, to avoid over-exploitation, or the ‘tragedy of the commons’ (Hardin 1968). However, Elinor Ostrom’s detailed studies of governance of common property resource systems has shown that they always involve collective action and delicate normative interactions between different types of user (Ostrom 1990). The law-and-economics approach originated with Ronald Coase, who criticised the sharp distinction between the market and the state and stressed the importance of analysing empirically the interactions of law and economics in managing the market-state relationship. Examining institutions such as lighthouses and broadcasting, he showed that they have not always been provided by the state and are not intrinsically public goods.1 He was also scathing about the crudity of ‘blackboard economics’, and developed the concept of ‘transaction costs’ to debunk the assumption of perfect competition, although this was largely ignored by most of his followers (Campbell and Picciotto 1998, 251–3). Yet, Coase (1937, 1960) applied economic analysis to compare the costs of coordinating economic activities through markets or through administrative structures, whether by the state or by the firm. This cost-benefit analysis, and the uncertainties of predicting and calculating the effects of state action, led to a preference for market-based solutions in law-and-economics, especially in the period of economic liberalisation from the mid-1970s. The paradoxical impact of Coase can be seen particularly in relation to the issue of environmental pollution, discussed in his seminal article ‘The Problem of Social Cost’ (Coase 1960). This analysed how the relative rights of neighbouring property owners would affect their economic activities if one caused pollution damaging the other. The first part showed that under conditions of perfect competition, bargaining between the parties would ensure an efficient outcome, regardless of whether the law imposes liability

1

  Hence, what is a ‘public good’ is politically determined (Malkin and Wildavsky 1991); for example, although most economists consider that banking should be private, it is not inherently so, as seen in the financial crash.

Sociology of law and economy  69 on the polluter or not (the so-called ‘Coase theorem’). This is essentially because ‘the right to do something which has a harmful effect . . . is also a factor of production’ (Coase 1960, 44). However, Coase understood well that, in reality, there are substantial ‘transaction costs’. He examined court decisions in conflicts over liability for harm between neighbours to show that judges applied the test of what is a ‘normal use’ of land in a flexible way, sensitive to the social context. He did not make this point explicit, but this was very different from the view that law provides certainty and predictability by applying formal rules in a socially neutral way. Furthermore, Coase acknowledged that it would be difficult to manage an activity having widespread harmful effects, such as smoke pollution, through individual rights and transactions, but cautioned that both the administrative costs and the economic effects of government action should be carefully evaluated (Coase 1960, 18). Marx’s comments on the equality of rights and markets, cited above, were of course ironic. His point was that economic activity should be viewed from the perspective of social relations as a whole, and that exchange depends on production; indeed, he gave it ontological primacy over circulation, and analysed economic systems as modes of production. For him, markets are ubiquitous in capitalism because it is a historically specific system driven by commodification, so that social relations between persons are seen in terms of the exchange of things. The equality and freedom of parties involved in market transactions is mirrored by their political status as free and equal citizens, but these appearances conceal the wider reality of social inequality and power. Since law provides the essential link between politics and the economy, it performs a paradoxical role: it facilitates apparently equal exchange relationships that permit and reinforce inequalities. For Marx, these inequalities are not external to legal forms, but are inscribed in those forms – if considered from the perspective of the totality of the social relations they mediate. The key relationship for Marx was employment, which under capitalism takes the form of a bargain between free persons. Weber pointed out that this formal right in practice enables the more powerful party, the employer, to impose the terms (Weber 1978/1921, 729–30). Marx further argued that what the employer pays for is not labour, but what he termed labour-power – the possibility of extracting surplus value by controlling the work to be done. Indeed, as factory production expanded, employment was generally conceptualised in law as a ‘contract of service’ so that the employer has the right to direct the worker; while a ‘contract for services’ framed an independent relationship for the delivery of specified outputs. More recently, the digitalisation of the economy has enabled new modes of labour exploitation used by firms such as Uber in the ‘platform economy’. These use technological disruption to avoid legislative protections for employees by treating those working to generate revenue for the platform as independent suppliers of services. Hence, while the legal form both reflects and shapes socio-economic power relations, it is essential to consider the whole socio-economic context to understand how (Dukes 2019). From such a wider perspective, feminists have pointed to the particular burden on women of the unpaid domestic work needed for social reproduction, while the prioritisation of men in the labour market leads to the systematic under-valuation of jobs considered to be women’s work, such as caring, or women’s sexual exploitation. The problematisation of the family-market and private-public divides provides fertile ground for feminist critiques of economic analyses of law, but also poses dilemmas about attitudes to commodification, strengthening the need for a more holistic perspective (Kotiswaran 2013).

70  Research handbook on the sociology of law These explorations also show that, because they are malleable, legal forms can be moulded to different contexts. Katharina Pistor has shown how lawyers have adapted what she describes as the basic legal modules, particularly contracts and property rights, to enable the generation of wealth or capital, and protected its accumulation. Drawing on critical legal studies, she debunks the notion of ‘clear property rights’, since legal reasoning is ‘open-ended’ and involves multiple sources of law, so that the fashioning of property rights is ‘a complex process pregnant with value judgments and power’ (Pistor 2019, 28).

INSTITUTIONS AND CORPORATE CAPITALISM A wider view of the nature of economic activities is provided by institutional economists, some of whom see law as central (Hodgson 2015), leading to closer collaboration between institutional economists and economic lawyers (Deakin et al. 2017). Economic sociologists have also begun to pay greater attention to the role of law (Swedberg 2003; Edelman and Stryker 2005; Ashiagbor et al. 2013). They all argue that economic activity is not spontaneous, but depends on law’s constitutive role: even exchange entails a transfer of legal rights, not just a physical object. More importantly, economic activities are social, going well beyond exchange, and hence embedded in institutions, created and shaped by law. These became increasingly important during the twentieth century as capitalism far outgrew the small-scale systems of production and distribution based on manufacture, family-owned businesses and local markets to the complex, large-scale, bureaucratised and globalised systems of today. The key institution that has dominated economic activity for some 150 years is the corporation, which exists only due to state action through law (Picciotto 2011, Ch. 4). Prior to industrial capitalism, trading companies such as the British and Dutch East India Companies were as much political as economic institutions, with state charters for colonial exploration and plunder. Others performed public functions, such as education or urban services and, later, large-scale infrastructure projects such as highways, canals and railways. The modern form, allowing any group of citizens to create a corporation by simple registration, emerged in the second half of the nineteenth century, justified again by the need to organise activities for the public benefit, as well as to democratise participation in collective activities through a membership institution. The legal framework for incorporation confers the key privilege of legal personality combined with limited liability. So, a company can engage in economic activity on its own account, and its members are not liable for its debts beyond the shares to which they have subscribed. Hence many, including Adam Smith, opposed use of the corporate form by entrepreneurs, who should be expected to risk their own capital. Facilitation of incorporation was championed in the UK in the mid-nineteenth century by a curious coalition of socialists, struggling for the right for workers to form collectives, and liberals arguing for greater economic competition (Djelic 2013). Roy (1997, 6) has described the corporate form as ‘socialised property, altering the basic relationships among owners, workers, managers, suppliers, and consumers’, and he shows that it cannot be explained in terms of market efficiency, but rather by power. The key advantage of the corporate form is the ability to plan and organise economic activities administratively within the firm, insulated from the market, and to exploit the power of

Sociology of law and economy  71 socialised labour, as recognised by theorists as apparently divergent as Marx and Coase. Although it is a collective and public institution, the corporation became based on private property through the development of the legal transferability of shares and the emergence of markets for them (Ireland 1996). This turned company members into shareholders with a purely financial interest, and gave corporations access to larger pools of finance. Hence, it was the booms and busts of overproduction and recession of the last part of the nineteenth century that saw the emergence of big business, which could plan production either through cartels (using contracts or trusts), or by financing amalgamations of smaller enterprises into large corporations (Fligstein 1990, 36–7; Lazonick 1991). The political reaction against the ‘robber barons’ in the US led to the antitrust laws, as a legal arena for the battles that shaped the emergence of a regulated oligopolistic corporatism (Sklar 1988; Picciotto 2011, 113–6), mediated by a new breed of corporate lawyers who devised the legal forms that deflected populist challenges and legitimated corporate power (Gordon 1984, 59–62; Hovenkamp 1991). In other countries, both state enterprises and cartels played an important role, until US influence transplanted competition laws to Japan and Europe after the Second World War, while the privatisations of the 1980s laid the foundations for the worldwide spread of competition regulation by the 1990s (Picciotto 2011, 141–154; Miola 2016, 646–648). The corporate form was further adapted to enable the creation of large and complex corporate groups, some consisting of hundreds of affiliates, operating transcontinentally and transnationally: the transnational corporations (TNCs) which have spread ‘business cultures, practices, perspectives’ worldwide (Wilkins 1998, 103). Corporate lawyers devised the structures and lobbied for laws allowing a corporation to own shares in another, using the competition between jurisdictions for company registrations to create corporate laws favourable to dominant interests (Grandy 1989). For much of the twentieth century the pre-eminent type of TNC was the large multidivisional firm run by professionalised managers, allied to long-term institutional or bank finance, coordinating ‘Fordist’ mass production with distribution to expanding consumerist markets (Berle and Means 1932; Chandler 1962). From the 1980s, post-industrial capitalism, due to mechanisation and then digitalisation, and the shift to dematerialised commodities or services, led to new combinations of corporate and contractual structures. A ‘networked enterprise’, such as McDonald’s, Nike, Apple or Zara, can use long-term contracting to manage producer supply chains, as well as distribution systems controlled through franchising or brand names. Their global reach gives increased importance to image and reputation, which has also led to consumer-based campaigns for ‘corporate social responsibility’ towards environmental protection and labour rights, pressing for the widening of corporate accountability beyond shareholders to other ‘stakeholders’ (McBarnet et al. 2007). Yet the pressures on TNCs to respect rights on the same scale as their economic operation have resulted mostly in voluntary self-regulation, such as corporate codes of conduct (Ruggie 2018). Both socio-legal scholars and activists have debated the effectiveness and legitimacy of this type of governance. While some argue that these norms offer little transformative potential (Shamir 2004), or may even delegitimize public regulation of TNCs, others suggest that under certain circumstances such codes may provide a focus for successful counter-hegemonic strategies, for example to protect labour rights (Rodríguez-Garavito 2005).

72  Research handbook on the sociology of law This also revived interest in alternative ‘social’ forms of enterprise, particularly cooperatives. These have a long history – indeed, enabling workers’ collectives was one of the drivers for the emergence of the corporate form, as mentioned above. However, worker cooperatives have found it hard to expand to the large scale needed to compete with big business, and the extensive chains of consumer cooperatives in many countries either crumbled or became very similar to shareholder-owned companies during the consumerist boom of the 1970s. Nevertheless, cooperatives have found important niches in some sectors such as small-scale agriculture, and in particular countries or regions. An outstanding example has been the Basque country in Spain, and the group coordinated through the Mondragón Cooperative Corporation (MCC) has been particularly successful. The group structure enables each cooperative to remain small enough to be democratically run by its worker-owners, while providing diversification and a wider financial base. The success or failure of corporations involves much wider social and cultural considerations, going well beyond competitiveness (Schoenberger 1997). The corporate form has spread around the world, but with differences in its legal framework, due to national variations in wider features such as the structures of financial intermediation, the role of the state and the components of the social wage, so that there are ‘varieties of capitalism’ (Hall and Soskice 2001). Yet, there has also been a converging global trend that has been described as the financialisation of the corporation: the increasing importance of finance, even for non-financial corporations (Horn 2017). The prioritisation of ‘shareholder value’, combined with other legal forms such as share-based remuneration of managers, creates a relentless drive to cut costs, often affecting jobs and working conditions and undermining environmental, labour and taxation standards. The prioritization of financial interests over the welfare of workers and society as a whole has been facilitated by a range of ingenious legal devices, culminating in 2007–9 when investment bankers walked away with millions despite having caused the global financial crash (Pistor 2019, 62–4). Hence, the flexibility of the corporate form, and the ability to combine it with other basic legal devices such as contracts, partnerships and trusts, have made it adaptable to different socio-economic and cultural contexts around the world, and to enormous changes in the social relations of production and distribution. Increasingly complex economic activities have been managed through legal frameworks that go far beyond the discrete contracts and basic property rights of a simple ‘market economy’, even though in formal terms a company share is just a transferable property right and a franchise is just a contract. The unpredictability and volatility resulting from unbridled market competition have been tamed to some extent, for periods of time, through legal institutions for managing and planning economic activity.

NEO-LIBERALISM AND THE REGULATORY STATE Governments took an increasing role in the economy during the Second World War and in the post-war boom. Also, the dependent or developing countries, which grew rapidly in number following decolonisation, generally adopted state-led policies of economic development, extending to widespread nationalisations, especially of natural resource

Sociology of law and economy  73 extraction and production. This led to a backlash, with criticisms on all sides, of the corporate ‘capture’ of the state. While the political left saw this as undermining the public sector for private advantage, the right-libertarian critique attacked the assumption in welfare economics that ‘public goods’ must necessarily be provided by the government. These arguments fell on fertile ground, as the growth in government spending led to fiscal crises, and bloated bureaucracies were often incapable of effective management of public services, especially in a period of rapid technological change. Thus, market-based perspectives were revived in the 1980s. This involved privatisation of government-run economic activities such as basic services (railways, water, power), essentially involving a transfer from public to private corporate bureaucracies, accountable to shareholders not citizens. There were also wider pressures to reduce state ‘intervention’ in the economy and restore free markets. Although sometimes described as deregulation – in fact there was an enormous growth of regulation – to the point that some have described the emergence of a ‘regulatory state’, and even ‘regulatory capitalism’ (Braithwaite 2008), and the emergence of a new interdisciplinary field of regulation studies (Picciotto 2017, Lange in this volume). Despite the enormous expansion of public bodies, the aim has been to be ‘marketfriendly’, for example, by extending private property rights to create markets. A notable example is the creation of markets for carbon emission permits based on ‘cap-and-trade’ mechanisms. This involved a complex interaction of political pressures, technocratic decision-making and competitive profiteering, ranging from corporate capture to wide-scale fraud. One study concluded that it had become hard to distinguish private from public actors, and that ‘markets do not exist independently, but . . . they are sociotechnocratic artefacts that depend on public state regulation for their existence and on good regulation for their daily functioning’ (Lederer 2012, 537). There has also been a great extension of ‘intellectual property rights’ (IPRs). This is paradoxical since, from a free market perspective, it is hard to justify the grant of exclusive rights of private property over technological innovation and cultural creativity. There is no need to conserve scarce resources, since IPRs protect ‘non-rival’ goods – indeed, IPRs artificially create scarcity (Picciotto and Campbell 2003). Hence, strengthening IPRs does not ensure ‘free’ markets, but confers market power. IPRs in their modern form emerged in the late eighteenth century, justified by Enlightenment ideas of the right of innovators and creators to the fruits of their labour, and copyright in particular became powered by Romantic ideals of authorship. However, they became used as weapons to gain and protect competitive advantages, both by large firms and by states. Thus, it is large TNCs that have driven the expansion of IPRs, to help cement their oligopolies: copyright for the media and later the software sectors, patents for pharmaceutical and later biotech companies, and database rights or trade secrets now for the many highly digitalised TNCs aiming to control big data. They have used these protections to create and maintain their oligopolistic domination of the economic exploitation of innovation and creativity. However, IPRs are not simply instrumental rights, but rather a battleground for contention over the content and scope of protection, as well as for challenges to its legitimacy. This is due to the fundamentally paradoxical endeavour of creating private and exclusive rights in relation to social practices that thrive from being public and collective.

74  Research handbook on the sociology of law The basic legal principles attempt to manage this tension, but have been continually contested. Patents do not protect discoveries found in nature, but the biotech industry secured their extension to ‘micro-organisms’, although the patentability of genetic fragments and sequences remains highly contested (Pistor 2019, 112–14; Picciotto 2011, 397–404). Copyright requires authorship creativity, but it has been secured for computer software and databases, although conflicts continue over whether reverse engineering or decompilation constitute copying. Striking back at appropriation, the ‘copyleft’ movement created ingenious legal frameworks to protect the ‘commons’, such as the General Public Licence for software, and ‘creative commons’ licences for creative works (Picciotto 2011, 433–6). Similarly, geographical indications of origin, devised in France early in the twentieth century to enable wider commercialisation of wine and food production, have been internationalised and expanded to try to foster both food and cultural products of communities in both developed and developing countries (Dagne 2010). More disruptively, peer-to-peer file-sharing struck a deadly blow at the recording industry giants which were slow to adapt to the internet, despite (or perhaps because of) their comfortable super profits from sales of digital discs; but this opened the way for new global corporate giants such as Netflix to devise subscription models for diffusion of cultural content. Ensuring excludability through law, which is essential to protect private property rights, is particularly difficult in the digital age. Hence, neither privatisation nor the extension of property rights can be said to have freed private actors to manage economic activities through market transactions with a minimal enforcement role for the state, as advocated by neoliberal theories. Instead, there has been an enormous growth of regulatory agencies, often semi-autonomous from the central state, tasked with a range of functions, including granting licences, permits or franchises (often including elaborate performance obligations), establishing quality and performance standards, and setting the terms for markets and competition (including pricing). It has also resulted in closer interactions between bodies regarded as public and private through a range of public-private ‘partnership’ arrangements. Public and private bodies have come to resemble each other, adopting similar managerial techniques, and many such bodies are hybrids, blending both characteristics. However, the far greater resources of privately owned corporations ensure that they dominate regulatory fields, particularly as these fields become more technicised and complex. Regulatory failures have led to scandals and crises; most starkly, the great financial crash of 2007–9. This led to calls for a restoration of trust in capitalism and for a more responsible and ethical ‘new capitalism’. However, there was a wide gap between these ideals and the regulatory reforms that ensued, as initial proposals for the restructuring of finance were eroded by corporate lobbying, strengthening the scepticism towards attempts to transform corporate culture. A re-examination by Nesvetailova and Palan (2020) of financial malpractice argues that this is not just an aberrant deviation from the norms of market behaviour, but is inherent in the competitive drive to maximise profits. They draw on the perception of Thorstein Veblen, based on observations of early twentieth century big business practices, that the pressure for profitability generates an urge to ‘sabotage’ market rules, which turns efficient market theory on its head. This suggests the need for more fundamental structural changes rather than regulatory reform of finance. These changes have also transformed public and private law, which have become less distinct – indeed, regulatory law occupies a space between the two. Private legal forms,

Sociology of law and economy  75 classically considered to concern voluntarist transactions between individuals, have increasingly been used for purposeful governance of a public character. For example, public services contracts are used to regulate the delegation to corporate providers of activities, ranging from refuse collection to the management of social housing (VincentJones 2006). This has exacerbated the tensions in private law: between contract as a discrete individual bargain and as a planning tool (Collins 1999) and in the law of torts or obligations, between the regulatory and redress models (Goldberg 2005). Scholars have addressed the relationship between regulation and these private law forms (Parker et al. 2004), but there remains uncertainty about what it would mean for private law to become more ‘regulatory’, and whether it could do so without losing its original and perhaps primary role. Private bodies also perform a regulatory role by drawing up standard form contracts, such as the ‘master agreement’ of the International Swaps and Derivatives Association (ISDA) governing financial derivatives. These aim to manage market uncertainties through legal language combining standard ‘boilerplate’ provisions with elastic and ambiguous terms (Riles 2008; Huault and Rainelli-Le Montagnier 2009). Thus, attempts to replace law with a digital code using blockchain, which would hardwire commitments and obligations, would lose the flexibility needed to respond to unpredictable events (Pistor 2019, 191). The rise of regulation has also changed views on the role of law. Regulation aims to move away from a top-down system of ‘command and control’, especially in relation to business activities organised by large corporations. Ayres and Braithwaite (1992) argued that regulation should be an interactive process, involving both firms themselves and civil society actors, with the ‘big stick’ of the state being a last resort. The interplay between state and private ordering should be responsive to industry structure and attuned to the motives of the different actors. The state could promote private regulation through ‘enlightened delegation’ of regulatory functions to public interest groups, to unregulated competitors, and even to regulated firms themselves, but this should be neither wholesale nor unconditional. The best government strategy should be negotiated self-regulation, agreeing goals while leaving the attainment of them to industry, but making it clear that socially suboptimal compliance would lead to escalation up the ‘enforcement pyramid’ of intervention. This drew on the work of Nonet and Selznick, who argued that social change had brought a crisis of the legal formalism of ‘autonomous’ legal orders described by Weber, resulting in the emergence of ‘responsive law’ (Nonet and Selznick, 1978). A variation on this, ‘reflexive law’ was developed by Teubner (Teubner 1983), influenced also by Luhmann’s structuralism, who was more pessimistic about the effectiveness of law (Nobles and Schiff, in this volume). Teubner argued that there had been a dual process of both increased autonomisation of law from other spheres such as the economy, which are ‘autopoeitic’ or self-reproducing, and at the same time an increasing dependence between them, creating greater expectations of the purposive role of law. These expectations are likely to be disappointed, so that regulatory failure is the rule rather than the exception, due to the ‘regulatory trilemma’: either lack of communication or mutual indifference between law and other spheres; or law would have a disintegrative effect on life-spheres; or, finally, the autonomy and hence authority of formal law would be overwhelmed (Teubner 1987).

76  Research handbook on the sociology of law

CONCLUDING REMARKS: LAW, INTERPRETATION AND THE MEDIATION OF POWER RELATIONS To understand how law both reflects and shapes economic relations calls for sociological approaches, which consider law as a social process, and its role in the transformations of capitalism (extending Weber’s approach). If economic relations are seen purely as market transactions, law’s role can be considered as simply facilitative: to enable economic actors to transact with each other voluntarily with a minimum of state compulsion. In addition, however, law also performs constitutive and regulatory roles (Edelman and Stryker 2005, 535), and these roles are intertwined. Sociologists of business lawyers have pointed out that they act as intermediaries, operating between the political sphere of the state and the economic sphere of the market (Dezalay 1996). Professional lawyers act for their clients in advising them how to structure their transactions and economic activities and to justify them, especially to other lawyers working as public officials. Economic activities involve different intersecting areas of law, and business lawyers are particularly adept at navigating between a variety of legal rules or norms, seeking the best outcome for their clients. Further opportunities to contest and challenge the applicability or validity of rules are provided by the interactions between different levels and types of law. As law on a global scale has become more diverse and heterarchical, managing and exploiting this ‘interlegality’ (Santos 1995) has become an increasingly important field of legal practice, dominated by business and corporate lawyers who have also been able to shape national legal systems and hence states around the world (Shaffer 2014). Business lawyers are proactive, both moulding existing rules and lobbying for and helping to formulate new law. This has been documented in a variety of domains, such as taxation (Picciotto 1995), bankruptcy (Halliday and Carruthers 1993), antitrust (Miola 2014), infrastructure (de Sa e Silva and Trubek 2018), as well as in broad political and economic transformations, for instance in Asia (Dezalay and Garth 2010) and Latin America (Dezalay and Garth 2002; Pérez-Perdomo 2006). Since lawyers both generate and interpret legal concepts and discourses, legal practices mediate between the state as the source of law and the sphere of economic activities. Lawyers are involved everywhere, from the formulation of proposals and drafts of texts such as legislation or treaties to the interpretation and application of these texts. Indeed, this is a continuous and recursive process, because if a lawyer fails to persuade an official or judge to accept an interpretation that favours a client, the argument can always be pursued elsewhere. Socio-legal perspectives have examined not only the structural role of lawyers, but also the practice of lawyering, going beyond the formalist view that legal rules are simply applied or enforced. Based on observations of lawyers’ practices, Cain described their activity as translation: the reconstitution of life-world situations ‘in terms of a legal discourse which has a trans-situational applicability’ (Cain 1979, 335). Hence, lawyers can design their clients’ life-world transactions to comply with the letter of formal law while avoiding its aims or purpose, described as ‘creative compliance’ (McBarnet and Whelan 1991). The pressures to seek competitive advantage over rivals create constant incentives to adapt and transform, as well as bend or break legal rules. Formalist perspectives consider that such avoidance is because the law is not always clear, but see this as a defect to be remedied, by better design and clearer rules, blocking up ‘loopholes’ in the logical fabric

Sociology of law and economy  77 of the law. This often leads to increasingly detailed elaboration of legal rules, resulting in legal complexity, for example in tax law (Picciotto 2015). Despite the formal picture of law as an internally coherent and logical system, the meaning of legal texts is not clear or fixed, but fluid and contested, and shaped by the social process of interpretation. While a formal written text narrows the scope of interpretation, it remains inherently indeterminate. In their constant battles over the meaning of legal rules lawyers generally contend that the problem is lack of clarity due to poor drafting, but they are in their element exploiting legal grey areas. They fight for what Pierre Bourdieu has called ‘le droit de dire le droit’ (the right to state the law) to justify their interpretation as the ‘correct’ one, and thereby sanctify its representation of the world with ‘the perceived objectivity of orthodoxy’ (Bourdieu, 1987, 839). The inherent indeterminacy of law is due to three main reasons. First, as linguistic philosophy shows, the meaning of language depends on social context and practices. From a sociological perspective this means that specialised technical language, such as that used by lawyers, is given meaning through the professional practices of ‘cognitive communities’ of specialists (Picciotto 2015). Second, in a liberal legal system legal concepts are usually abstract and of general applicability, leaving considerable scope for interpreting how they should apply to specific actions or situations. Third, legal rules are normative, so their interpretation is necessarily teleological. To put forward an interpretation of a legal rule is to propose the desirability of one norm rather than another. Although lawyers often discuss the meaning of legal rules as if that were the only and obvious way to understand them, they are always to some extent advancing a version that is in the interests of their client, or for some other purpose. Technicism or formalism generally aims to depoliticise the issue under debate, while a purposive approach makes explicit the broader issues involved. Thus, law’s role in stabilising normative expectations emerges from the cognitive community, which establishes the shared understandings (Bourdieu’s ‘habitus’) normalizing accepted interpretations. Access to legal resources gives powerful advantages to ensure domination of this process through professional techniques and practices. Hence, power in today’s corporate capitalism is buttressed by the ability to mobilize elite lawyers (Pistor 2019, 158–192) in large numbers, to dominate professional discourses, and deploy complex strategies in the multiple sites of legal contestation that lie between the public sphere of politics and the state and the private sphere of structuring and managing commercial and corporate transactions. It is because lawyers mediate between the realms of economic and political power that legal forms, concepts and institutions, through the lawyering practices of interpretation, can both reflect and shape economic activity.

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78  Research handbook on the sociology of law Bourdieu, Pierre. 1987. ‘The Force of Law: Toward a Sociology of the Juridical Field’. Hastings Law Journal 38, 805–53. Braithwaite, John. 2008. Regulatory Capitalism: How it Works, Ideas for Making it Work Better. Cheltenham: Edward Elgar Publishing. Britton-Purdy, Jedediah, David S. Grewal, Amy Kapczynski and Sabeel K. 2020. ‘Building a Law-and-PoliticalEconomy Framework: Beyond the Twentieth-Century Synthesis’. Yale Law Journal 129, 1784–1835. Cain, Maureen. 1979. ‘The General Practice Lawyer and Client’. International Journal of the Sociology of Law 7, 331–54. Campbell, David and Sol Picciotto. 1998. ‘Exploring the Interaction Between Law and Economics: the Limits of Formalism’. Legal Studies 18, 249–78. Chandler, Alfred D. 1962. Strategy and Structure: The History of American Industrial Enterprise. Cambridge, MA: MIT Press. Coase, Ronald H. 1937. ‘The Nature of the Firm’. Economica 4(16), 386–405. Coase, Ronald H. 1960. ‘The Problem of Social Cost’. The Journal of Law and Economics 3(1), 1–44. Collins, Hugh. (1999) Regulating Contracts. Oxford: Oxford University Press. Dagne, Teshager W. 2010. ‘Harnessing the Development Potential of Geographical Indications for Traditional Knowledge-Based Agricultural Products’. Journal of Intellectual Property Law & Practice. Deakin Simon, David Gindis, Geoffrey M. Hodgson, Huang Kainan and Katharina Pistor. 2017. ‘Legal Institutionalism: Capitalism and the Constitutive Role of Law’. Journal of Comparative Economics 45(1), 188–200. Demsetz, Harold. 1967. ‘Toward a Theory of Property Rights’. American Economic Association (Papers & Proceedings), 347–59. Dezalay, Yves. 1996. ‘Between the State, Law, and the Market: The Social and Professional Stakes in the Construction and Definition of a Regulatory Arena’. In W. Bratton, J. McCahery, S. Picciotto and C. Scott (eds). International Regulatory Competition and Coordination. Oxford: Clarendon Press, 59–87. Dezalay, Yves and Bryant G. Garth. 2002. The Internationalization of Palace Wars: Lawyers, Economists and the Contest to Transform Latin American States. Chicago, IL: University of Chicago Press. Dezalay, Yves and Bryant G. Garth. 2010. Asian Legal Revivals: Lawyers in the Shadow of Empire. Chicago: University of Chicago Press. Djelic, Marie-Laure. 2013. ‘When Limited Liability was (Still) an Issue: Mobilization and Politics of Signification in 19th-Century England’. Organization Studies 34(5–6), 595–621. Dukes, Ruth. 2019. ‘The Economic Sociology of Labour Law’. Journal of Law and Society 46, 396–422. Edelman, Lauren B. and Robin Stryker. 2005. ‘A Sociological Approach to Law and the Economy’. In Neil Smelser and Richard Swedberg (eds). The Handbook of Economic Sociology. New York: Russell Sage, 527–51. Fligstein, Neil. 1990. The Transformation of Corporate Control. Cambridge, MA: Harvard University Press. Fligstein, Neil. 2001. The Architecture of Markets. An Economic Sociology of Twenty-First-Century Capitalist Societies. Princeton, NJ: Princeton UP. Goldberg, John C. P. 2005. ‘Tort’. In Mark Tushnet and Peter Carne (eds). The Oxford Handbook of Legal Studies. Oxford: OUP. Gordon, Robert W. 1984. ‘The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870–1910’. In Gerard W. Gawalt (ed). The New High Priests: Lawyers in Post-Civil War America. Westport, CT: Greenwood. Grandy, Christopher. 1989. ‘New Jersey Corporate Chartermongering, 1875–1929’. The Journal of Economic History 49(3), 677–92. Hall, Peter A. and David W. Soskice. 2001. Varieties of Capitalism: The Institutional Foundations of Comparative Advantage. New York: Oxford University Press. Halliday, Terence and Bruce Carruthers. 1993. ‘Redistributing Property and Jurisdictional Rights Across the Public-Private Frontier: Professions and Bankruptcy Reforms in Britain and the United States’. Droit et Société: Revue Internationale de Théorie du Droit et de Sociologie Juridique 23, 79–113. Hardin, Garrett. 1968. ‘The Tragedy of the Commons’. Science New Series 162 (3859), 1243–48. Hodgson, Geoffrey M. 2015. Conceptualizing Capitalism: Institutions, Evolution, Future. Chicago, IL: University of Chicago Press. Horn, Laura. 2017. ‘The Financialization of the Corporation’. In Grietje Baars and Andre Spicer (eds.). The Corporation: A Critical, Multi-Disciplinary Handbook. Cambridge: Cambridge University Press, 281–90. Hovenkamp, Herbert. 1991. Enterprise and American Law 1836–1937. Cambridge, MA: Harvard University Press. Huault, Isabelle and Hélène Rainelli-Le Montagner. 2009. ‘Market Shaping as an Answer to Ambiguities: The Case of Credit Derivatives’. Organization Studies 30(5), 549–75. Ireland, Paddy. 1996. ‘Capitalism without the Capitalist. The Joint Stock Company Share and the Emergence of the Modern Doctrine of Separate Legal Personality’. Legal History 17(1), 40–72.

Sociology of law and economy  79 Lazonick, William. 1991. Business Organization and the Myth of the Market Economy. New York: Cambridge University Press. Lederer, Markus. 2012. ‘Market Making via Regulation: The Role of the State in Carbon Markets’. Regulation and Governance 6(4), 524–44. Malkin, Jesse and Aaron Wildavsky. 1991. ‘Why the Traditional Distinction between Public and Private Goods Should be Abandoned’. Journal of Theoretical Politics 3, 355–78. Marx, Karl. 1887. Capital. Volume 1. (Translated by Samuel Moore and Edward Aveling, edited by Frederick Engels, republished by Progress Publishers, Moscow). McBarnet, Doreen and Christopher Whelan. 1991. ‘The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control’. Modern Law Review 54, 848–73. McBarnet, Doreen, Aurora Voiculescu and Tom Campbell. 2007. The New Corporate Accountability: Corporate Social Responsibility and the Law. Cambridge University Press. Miola, Iagê Z. 2014. ‘Law and the Economy in Neoliberalism: The Politics of Competition Regulation in Brazil’. In Renato Treves, International PhD in Law and Society (ed). Milan: University of Milan. Miola, Iagê Z. 2016. ‘Competition Law and Neoliberalism: The Regulation of Economic Concentration in Brazil’. Revista Direito e Práxis 7, 643–89. Nesvetailova, Anastasia and Ronen Palan. 2020. Sabotage. London: Allen Lane. Nonet, Philippe and Philip Selznick. 2001. Law and Society in Transition: Toward Responsive Law. New Brunswick, NJ: Transaction Publishers. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press. Parker, Christine, Colin Scott, Nicola Lacey and John Braithwaite. 2004. Regulating Law. Oxford: Oxford University Press. Pérez-Perdomo, Rogelio. 2006. Latin American Lawyers: A Historical Introduction. Stanford: Stanford University Press. Picciotto, Sol. 1995. ‘The Construction of International Taxation’. In Yves Dezalay and David Sugarman (eds). Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction of Markets. London: Routledge. Picciotto, Sol. 2011. Regulating Global Corporate Capitalism. Cambridge University Press. Picciotto, Sol. 2015. ‘Indeterminacy, Complexity, Technocracy and the Reform of International Corporate Taxation’. Social & Legal Studies 24(2), 165–84. Picciotto, Sol. 2017. ‘Regulation: Managing the Antinomies of Economic Vice and Virtue’. Social & Legal Studies 26(6), 676–99. Picciotto, Sol. 2018. ‘International Tax, Regulatory Arbitrage and the Growth of Transnational Corporations’. Transnational Corporations 25(3), 27–53. Picciotto, Sol and David I. Campbell. 2003. ‘Whose Molecule Is It Anyway? Private and Social Perspectives on Intellectual Property’. In Alistair Hudson (ed). New Perspectives on Property Law, Obligations and Restitution. London: Cavendish, 279–303. Pistor, Katharina. 2019. The Code of Capital. How the Law Creates Wealth and Inequality. Princeton, NJ: Princeton University Press. Posner, Richard. 1972. Economic Analysis of Law. Boston: Little Brown, 9th edition 2014. Riles, Annelise. 2008. ‘The Anti-Network: Private Global Governance, Legal Knowledge, and the Legitimacy of the State’. American Journal of Comparative Law 56, 605–30. Rodríguez-Garavito, César A. 2005. ‘Nike’s Law: The Anti-Sweatshop Movement, Transnational Corporations and the Struggle over International Labor Rights in the Americas’. In Boaventura de Sousa Santos and César Rodríguez-Garavito (eds). Law and Globalization from Below. Cambridge: Cambridge University Press, 64–91. Roy, William G. 1997. Socializing Capital. The Rise of the Large Industrial Corporation in America. Princeton, NJ: Princeton University Press. Ruggie, John G. 2018. ‘Multinationals as Global Institution: Power, Authority and Relative Autonomy’. Regulation & Governance 12, 317–33. Santos, Boa de Sousa. (1995). Towards a New Common Sense. Law, Science and Politics in the Paradigmatic Transition. London: Routledge. Schoenberger E. 1997. The Cultural Crisis of the Firm. Oxford: Blackwell. Shaffer, Gregory. 2014. Transnational Legal Ordering and State Change. Cambridge: Cambridge University Press. Shamir, Ronen. 2004. ‘The De-Radicalization of Corporate Social Responsibility’. Critical Sociology 30(3), 669–89. Silva, Fábio de Sa e and David Trubek. 2018. ‘Legal Professionals and Development Strategies: Corporate Lawyers and the Construction of the Telecoms Sector in Brazil (1980s–2010s)’. Law & Social Inquiry 43, 915–43.

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7.  Sociology of law and science Emilie Cloatre and Martyn Pickersgill

In this chapter, we interrogate how the interactions between law and science have been approached by the social sciences. In the last three decades in particular, these interactions have been a growing focus of academic interest (Cole 2017; Caudill and Larue 2006; Silbey 2008, 2008b). An increasing body of inter and transdisciplinary empirical research and novel theorisation has sought to inspect and unpack how law and science as institutions and bodies of knowledge shape contemporary societies (Pottage 1998; Strathern 2019). In particular, research has engaged closely with how the interactions between law and science act as accelerants of material and semiotic innovation (Silbey and Ewick 2003; Hayden 2003; Jacob 2012). Yet, it is probably fair to say that these questions have not been as central to the sociology of law as one may expect, emerging instead as a distinct, though overlapping, subfield of inquiry. Thinking about the relations between law and science (and the multifaceted processes and institutions that these two terms summarise) from a sociological perspective builds onto a series of questions explored by the sociology of law and socio-legal studies, and by the sociology of science and the wider field of science and technology studies (STS). On the one hand, analyses of law and science build on longstanding questions in the sociology of law, such as: how is the authority of legal institutions constituted and how does it operate in the everyday (Ewick and Silbey, 1998)?; what types of sub-cultures and forms of knowledges permeate norm-making institutions (Merry 2012)?; how do different types of normativities co-exist within and alongside those of the State (Galanter 1981; Griffiths, 1986)?; and, fundamentally, what should we consider as ‘law’ (Malinowski 1926)? On the other hand, considerations of law and science pursue lines of inquiry established by STS (and the sociology of science more specifically), such as: how are scientific norms shaped, and how do they shape society (Shapin, 1994); how do experts and expertise come to be determined (Callon, Lescumes and Barthe 2009); and, how does scientific knowledge settle and feed into methods of regulation and governance (Jasanoff 2005)? Critical attention to how law and science interact also develops problematics that overlap the sociologies of law and science, including the relation between public authority and particular forms of (dis)empowerment (Harding 1986; 1998; Cooper 1998; 1995; Merry 2004). Some core questions of ‘law and science scholarship’ seem recurrent. For example, a key emphasis has been the interrogation of how legal decision-making and institutions respond to scientific knowledge (Jasanoff 1997; Brownsword and Goodwin 2012), or even how the law ‘learns from’ science – be it in the court room or as regulations are being made (Lynch and McNally 2003; Cole and Lynch 2006). At the same time, legal scholars have explored the (actual or potential) framing of new technologies and what the law could do to foster technoscientific research and development (Brownsword and Yeung 2008). In this chapter, we seek to observe and analyse the heterogenous scholarship situated within what some term the field of ‘law and science’ and its overlaps with the sociology of law. Such a review, though, is complicated by the fact that how this 81

82  Research handbook on the sociology of law broad topic has been approached has greatly varied. If some scholars have sought to focus on the interaction between law and science as a way to more forcefully unsettle what we may assume of both, it is fair to say that many others have been rather less critical. In particular, legal scholarship that assumes that new scientific discoveries can straightforwardly be embraced by the law and transform its practice, or that law can simply superimpose itself over them, continues to constitute a significant proportion of work in ‘law and science’. In our attempt to map this field, we are conscious of the conceptual tensions that inhabit it. Accordingly, we focus primarily on work that has sought to engage critically with both science and law, as well as on their interaction: we are particularly interested in sociological approaches that have taken seriously both the sociology of law and STS. In what follows, we chart some of the more productive intellectual exchanges of the past few decades have emerged at the crossroad of the sociology of law and socio-legal studies with STS and the sociology of science. Scholars positioning themselves at this intersection have focused specifically on the joint workings of law and science in the making of a particular type of knowledge, and of particular types of institutions and social relationships (Aronson, 2007; Biagioli 2011; Bora 2008; Cloatre 2019; Shapiro 2015). In so doing, they have also contributed to shifting attention away from ‘law’ and ‘science’ as independent objects of analysis towards their inherent interaction – or what Sheila Jasanoff has referred to as ‘co-production’ (Jasanoff 2004). Indeed, both law and science can, through an STS lens, be seen as inseparable from the broader networks of social (or sociotechnical) practice in which they are inscribed. Even though we may have an instinctive sense of what law or science ‘look like’, the definition of their boundary has been a contested issue in both the sociologies of law and of science. In this chapter, we are concerned to introduce the types of questions that most strikingly indicate why the field of ‘law and science’ is best seen as one of intermingling of knowledge, practices and institutions that essentially shape each other. This is counter to another vision of these domains that regards them as pre-existing independent spheres of practice that only occasionally and aloofly meet. We acknowledge that our focus will, inevitably, elide important work that escapes our framing. This includes scholarship that, for example, touches on how some new technologies are regulated, or ought to be regulated. Here, we privilege social scientific critiques to normative discussion. Our intent is that this will in turn provide a compelling invitation for further and future considerations of a nascent field that has sought to develop a new form of critique.

STS AND LAW The interdisciplinary field of science and technology studies (STS) has many origin stories, but it is fair to say that it represents the coming together in the 1970s of various strands of sociological, historical and political discourses, originating in a range of countries, on the production and effects of scientific knowledge and technological artefacts (Pickersgill and Jasanoff, 2018). STS is particularly sensitive to the social dimensions of science, considering through robust case studies how micro and macro social currents and processes directly shape epistemic and material innovation, and its societal ramifications. Today, STS scholars approach a range of empirical sites, from classical studies of physics

Sociology of law and science  83 and genetics, to wide-ranging research on psychological care, environmental health, gambling machines and social media. Many who work in law, socio-legal studies, and the sociology of law, and who have turned to STS, continue to associate the field most strongly with actor-network theory (ANT) – especially the work of one of the key figures in STS, Bruno Latour (Cloatre 2018; Seear 2020). First, through ANT and later via his later engagement with the making of knowledge and authority in law, Latour has explicitly sought to experiment with what applying the methodological sensitivities of STS to legal institutions might mean (Latour, 2002). His approach, and ANT more generally, has also enabled particular critiques of law’s modes of action and enunciation. We leave aside this particular strand of work from our review. This is in part because it has already extensively been commented upon elsewhere (Cloatre 2018; Pottage 2012). It is also because, in reviewing work at the crossroad of law and STS, we seek to maintain our focus on the ways in which the subfield has problematized the interaction between legal and scientific phenomena, rather than broader conceptual avenues. If the approaches and questions that brought together legal studies and STS have been diverse, the objects and spaces around which scholars have gathered to interrogate the interaction between law and science have also been numerous. This further complicates the possibility of sharply delineating the boundaries of what the field of ‘law and science’ may, or should, represent. Case studies for empirical scrutiny range from psychological care to environmental crises and from laboratories to hospitals to courtrooms, and involve lawyers, nurses, police officers and ‘non-experts’. Much attention has, unsurprisingly, been devoted to significant moments in scientific development: new technologies or major breakdowns of trust that have, for example, reshaped legal and biopolitical relationships (Franklin and Ragoné 1998; Petryna 2002). Work on biotechnology, and genetics in particular, has proven to be especially influential (Pottage 1998; Jasanoff 2011). In analyses of this kind, the meaning of expertise and modes of its construction have been a particular focus of attention (Prainsack 2015; Raman 2015; Leclerc 2005). Scholars explicitly articulated, or implicitly responded, to the notion that it is important to explore both how law can shape scientific (including biomedical) knowledge (Adams 2002; Cloatre 2019; Pottage 1998), or indeed how legal decisions and processes of decision-making can (or should) answer to or engage with science (Levidow 1998). Further, findings and theories from criminal law and tort law have stimulated numerous debates about what could count as evidence (Prainsack and Kitzberger 2009; Scheffer 2010; Toom 2016). They have also sparked conversations about how particular types of expertise or technologies could help us get closer to the ‘facts’ that judicial decision-making tends to rely upon (Aronson 2007; Balmer 2015; Lawless 2012; Rees 2015). Studies allying an attention to law and to technoscience have also reached less obvious fields of practice, such as financial regulation, labour law and counter-terrorism (Alessandrini 2015; de Goede 2012; Grabham 2015, 2016; Riles 2000). Moreover, some strains of law and STS scholarship have been characterized by an attention to the everyday, extending a longer tradition within the sociology of law: analyses of discrete – and often discreet – forms of everyday interactions have been distinct features of the field (Jacob 2012; Riles 2011; Cloatre 2013). How such relations shape and are shaped by complex movements across law and science has been demonstrated through fine-grained empirical scrutiny. An example of this comes from Jacob (2019), who showed how notions

84  Research handbook on the sociology of law of ethical practices and their regulation within biomedical publishing are made through conversation and committee work (echoing some of the themes otherwise explored by legal pluralism, in its questioning of co-existing and overlapping normative orders, each with their own inner mechanisms). In addition, conceptually, STS scholarship on law has also been extended to much broader and less expected sites, shifting received wisdom about how we may explore the making of legal and political norms and practices themselves (Pottage 1998; Lezaun 2012; Cowan and Carr 2008). For a long time, and often still, a default mode for imagining the interaction between law and science is as an encounter between two relatively fixed and stable institutions. One of the primary characteristics of the rapprochement between socio-legal and STS scholarship has been a shift to perceiving these institutions as intimately entangled by and within each other, and wider social – often transnational – networks. Scholars have shown how, through these encounters and entanglements, new social and material realities are produced (Edmond 2001; Faulkner 2012; Pickersgill 2013a; Cole and Lynch 2006). Appreciating such co-dependency challenges competing visions of law and science as independent spheres of knowledge that may simply borrow from, or build upon, one another (Jasanoff 1997; Pickersgill 2012). This has enabled, in particular, the charting of the epistemic and legislative dynamics which arise in and through the interactions between legal institutions, scientific knowledge and technological innovation (Aronson and Cole 2009; Brownsword and Yeung 2008; Jasanoff 1997). These findings have enjoined revised conceptual starting points for studies of law and science which, in turn, have methodological implications. For one, a move is necessitated from a straightforwardly normative to a more critically descriptive approach. This involves close textual analysis to be sure, but also techniques such as qualitative interviewing, focus groups and ethnography. In the future, it will also likely include innovative quantitative techniques of examining and parsing emergent sociality, such as social network analysis and digital issue mapping (Marres 2015). Although some analysts continue to call for legal systems to be enhanced by learning from science, or seek to argue for a ‘better’ integration of scientific knowledge into law, the scholarship we focus on approaches this encouragement tentatively. It acknowledges from the outset that science is itself subject to negotiations and settlement, and that its framing by law is never just a superimposition. Similarly, rather than law being imagined as ‘learning’ from a fixed body of scientific knowledge, it imagines the type of knowledge produced by law in its encounter with science, or indeed technological innovations, as being based on its own logics and processes of construction (Pickersgill 2011). Longstanding claims of a ‘culture clash’ between lawyers and scientists continue, still, to endure, with the responsibility for dissipating this curiously and asymmetrically apportioned to lawyers by lawyers. Specifically, lawyers often expect one another to learn from or solemnly acknowledge the supposed objectivity of science. This is perhaps especially the case when regulation is charged with needing to ‘catch up’ with technoscientific developments that are purported to be breathtakingly novel. Of course, there will be instances where legislative practice could or should be made more robust, particularly in instances of potential corporate capture, or where protections for groups might compound existing inequalities, or where innovation has somehow evaded existing regulatory regimes (Muto, 2010). However, propositions for law that romanticise or idealise science have largely been debunked by closer attention to, and the delicate

Sociology of law and science  85 handling of, the types of knowledge produced jointly by legal and scientific practices (Jasanoff 1997; Caudill and LaRue 2006). Through the lens of STS, science has become understood as a field of contested practice, and knowledge as a process, from which some social actors and forms of expertise are more likely to be excluded than others. What emerges from its workings is an inevitable partiality, rather than an unmediated access to Truth (Haraway 1988). Paying attention to the patterns of silencing and exclusion that can cut across science makes calls to uncritically seek to improve the legal system through a closer relationship with science, both normatively problematic and analytically unproductive. Of course, reimagining the relationship of law and science has also been informed by the conceptual challenges that continue to surround legal analysis. Legal scholars have built upon a vast body of work from socio-legal studies, legal anthropology, critical legal scholarship, feminist, or postcolonial legal studies, among others, to articulate the layering of legal processes (Cloatre and Enright 2017; Jacob and Riles 2007; Mawani 2009; Silbey 2005). This has complicated what others may assume of what law or regulation mean for scientific practice or, indeed, how we imagine their relationship and interdependency. Overall, scholarship at the crossroad of law and STS has opened up debate on thematics and methods that continue to make the field of ‘law and science’ both difficult to capture and constantly evolving. In what follows, we present and parse scholarship along two sets of questions that has most centrally echoed the concerns of the sociology of law. First, the regulation of science, and the type of social interactions that are at stake in this process. And second, the question of expertise, and how particular forms of authority can be constituted through the joint works of law and science.

REGULATING SCIENCE A significant part of contemporary scholarship on law and science has been interested in how law responds to scientific and technological innovation – from genetics, to reproductive technologies, to artificial intelligence. Questions have gravitated at one level around normative tensions and challenges, and the balance to be found between the promissory nature of new technologies and the challenges they may pose for social justice or individual rights. At the same time, legal scholars have often sought to interrogate what new technologies may mean for the practice of law. To name one prominent example from the last decade or so: what might developments in neurosciences bring to legal practice (Morse 2004)? Or, more recently, how might AI transform the legal profession (Ashley 2017)? It is probably fair to say that part of this scholarship has remained separated from the social scientific work – in particular, within STS – that has sought to complicate the nature of science, and to problematize how scientific innovation should be imagined. As we noted above, narratives about the fast-changing nature of science and the tendency of law to lag behind continue to persist in some sections of legal scholarship. Other analysts have more closely engaged with the empirical and conceptual traditions of STS, bringing these in conversation with the concerns of the sociology of law, by exploring more productively the ways in which normative frameworks shape the praxis of scientific innovation. This has opened a more detailed engagement with, for example, the range of interests that get accommodated, replicated, or produced through new scientific

86  Research handbook on the sociology of law and technological developments, and how law participates in enabling of perpetuating such patterns (Cloatre 2018; Hayden 2003; M’charek et al. 2013; Prainsack 2015). It has also illustrated how the rights and duties of citizens may be realigned and, indeed, how new technologies might restyle varieties of citizenship (Flear and Pickersgill 2013; Flear et al. 2013; Jasanoff 2011). The politics of innovation, and the political choices made in facilitating or restricting legal and material access to particular innovations, have also been made apparent (Cloatre 2013). In so doing, scholars have highlighted how social, gender, or racial inequalities can be enmeshed in both scientific processes and the regulation of their end products (Adams 2002; M’charek 2008; Franklin and Ragoné 1998). Attention has also turned away from innovation per se to look at how law and science can work together to produce particular forms of citizenship through more mundane technologies. For example, Cloatre and Enright (2017; 2018) analysed the struggles that surrounded the making of condoms as ‘legal technologies’ in Ireland. They emphasized how decades of organized illegal distribution enabled the transformation of condoms from being seen by the state as deviant objects, to being accepted as health devices. Some working at the interface of STS and law have questioned how particular technologies or forms of scientific knowledge have come to be accepted within regulatory or legal systems as reliable, and the type of politics that this may suggest both for law and for science (Lynch and McNally 2003; Raman 2015; Cloatre 2019). Intellectual property scholars who have engaged with STS have also explored both how pre-existing legal patterns can determine what gets ‘made’ in science, while assumptions about what science looks like (often loaded with their own politics) continue to shape legal systems (Biagioli 2011; Pottage 2015). As a whole, these more critical analyses of how legal and technoscientific praxis work alongside and through each other have participated in challenging deterministic ideas about modernity and development that can still be prevalent in more mainstream writings about the law. Rather than being seen as simply framing, enabling or holding back an otherwise linear process of innovation, law has been seen as having a stake in determining the conditions – and, indeed, nature – of science. At the same time, the interaction between law and science can be read as a more openly political process in which patterns of exclusions, silencing and maintenance of power are rewritten, and occasionally challenged (Cloatre and Enright 2017; Cloatre and Salvini Ramas 2020; Pordié and Gaudillière 2012). Viewed in this more critical fashion, the regulation of science – and regulation with – science becomes a more interesting site in which to explore how past, presents and futures are jointly narrated and formed by legal and scientific knowledges, institutions and practices. Additionally, the mixing of law and science comes to influence the very possibilities of social justice and (re)distribution. This is perhaps most strikingly evident in debates about intellectual property and its impact on the politics and practice of technological change (for example, Hayden 2003; Pottage 2006).

EXPERTISE, CITIZENS AND THE MAKING OF LAW A core theme in sociological studies law and science has been that of expert knowledge and its entanglement in legal processes. This has directly built upon a longstanding concern in the sociology of law around the question of what sustains the authority of

Sociology of law and science  87 legal institutions. The authority of law derives, at least in part, from its ability to mobilise expert knowledge, of which science is often taken as the most reliable example. As STS scholarship has demonstrated, however, the idea of a purely objective and depoliticized form of knowledge does not bear close scrutiny. As a range of historical and contemporary scholarship has clearly demonstrated, knowledge is always the product of particular settlements and constructs (Schiebinger 2004; Shapin 1995). It is always subject to reopening, and shaped by the tools used to scrutinize it. If studies seeking to interrogate how expert knowledge has been mobilized in law have cut across multiple legal contexts, they have also considered both the making of regulation and courtroom practices (Aronson and Cole 2009; Cole 2004; Biagioli 2011; Bronsword and Yeung 2008; Laurie and Harmon 2015; Kirkland 2016). Further, they have been attentive to the myriad of everyday administrative processes that define contemporary regulation (Jacob and Riles 2011). Research originating within STS has shown how expert knowledge that is used and deployed in the courtroom is subject to processes of selection and translation that are both remade with every encounter, and dependent on external negotiations (Edmond and Mercer 2004; Jasanoff 2007). Such work has illuminated how the simplifications and translations at stake in determining what counts as knowledge for the purpose of the law produces its own forms of politics, and reinforces other relationships of power and disempowerment (Adams 2002; Cloatre 2019). When brought into the context of lawmaking processes, the issue of expertise has also raised bigger questions around participation in the making of public rules, and indeed about the very nature of democracy. Considering whose knowledge informs regulatory decision-making, and how, contributes to broader debates about how the institutions of law and science can enable or exclude particular groups from participation in civic life (Flear and Pickersgill 2013; Hayden 2003; Levidow 1998; Raman 2015) and the production of local and global regimes of normativity (Pickersgill 2012). One of the contributions of STS scholarship has been to demonstrate that knowledge is always weighted with the history of its making and that ‘regulatory knowledge’ is always a translation of science rather than its replication. Expertise is inevitably political and inscribed into particular modes of making that law does not always make apparent. It is also diffuse, with ‘lay experts’ often seeking to have their voices heard alongside those of traditionally credentialed agents who have been more formally mobilized through established institutional channels (Callon, Lascoumes and Barthes 2009; Epstein 1996; Turkmendag 2015). Networks of knowledge making tend to reflect the privileges and violences of the societies within and across which they are situated, influencing the types of knowledge available to law and delimiting which of these it comes to rely on. Further, these social (and sociotechnical) dynamics operate within and pattern considerations of how to assess, or value, particular forms of knowledge. Those who are able to speak with the authority of science are also those who already tend to be empowered, and are not necessarily speaking for those that are being regulated. This is strikingly illustrated by – sadly ongoing – struggles around reproductive rights. Thinking of new ways to explore and engage the processes through which experts and expertise are forged through, enrolled by, or silenced via law seems particularly pressing. This is not least given the increasing challenges to the value of expertise to public decision-making within many nations. Such challenges can inadvertently – and sometimes deliberately – ossify established and conservative hierarchies of expertise as a strategy of

88  Research handbook on the sociology of law resistance to political elision. In turn, spaces for participation by a wider range of experts are further shrunk. Technocratic decision-making and political claims-making disguised as objective knowledge, has certainly contributed to a growing distrust towards experts and their claims. At the same time, more than ever, it is crucial to reconcile a critique of the particular processes at stake in knowledge production and the revaluing of a broadened form of expertise in public decision-making.

MOVING FORWARD IN STUDIES OF LAW AND SCIENCE By enabling a cross-fertilisation of interdisciplinary legal studies and STS, studies in law and science, or indeed ‘law and STS’, have contributed to providing new forms of critical engagement with both the institutions of law and those of science. In so doing, they have offered new ways to conceptualise the nature, effects and affects of law. The rapprochement these studies represent cannot be characterised as representing merely a linear and one-way influence of STS on law: STS scholarship that takes interest in regulatory movements has been afforded considerable benefit from the conceptual contributions that legal scholars have made to their own objects of study (M’charek et al. 2013, Toom 2016). Bringing together the critical assessment of legal and scientific endeavours has enabled scholars to break new ground. In particular, new conceptual and methodological engagements have made apparent some of the political dynamics that determine how law functions in societies, and how scientific and legal practices can feed off each other in strengthening pre-existing relationships of institutional power. If STS has to a great extent enabled legal scholars to approach science as a much less certain object than they may have done otherwise, ‘law and STS’ scholarship has also contributed to destabilizing understandings of the ontology of law, adding new insights into the many ways in which legal authority gets constructed, sustained or defined. Much work, however, continues to be needed in enabling the deeper embedding of critical reflections on science within legal scholarship as a whole – and critical engagements with law and regulation in STS scholarship. Further inquiries across the broad thematics we have sketched may continue to provide new examples that will illustrate why neither objects, nor their interaction, can be approached as taken for granted and stable entities. At the same time, neither interdisciplinary legal studies nor STS have so far been able to influence discussions of law and science as a whole. Significant sections of legal scholarship continue to assume the settled and factually authoritative nature of science, and to simply accept claims about the transformative nature of scientific developments – eliding the fact that novelty is itself a social accomplishment (Pickersgill 2019). Similarly, STS scholarship does not always do justice to the deep politics often at stake in the regulatory adjustments that new technologies are commonly argued to require, do not clearly articulate the theoretical standpoints that they adopt when talking about law, and do not treat law with anywhere near the sophistication with which they approach science. Where work on law and science continues to offer more critical, interdisciplinary insights, these are both conceptual and methodological: an increasing return to the micro, or aspects of the technical (Riles 2005), coupled with ethnographic accounts of localized interactions, for example. But also, the unpacking of the assumptions, practices and objects that we may have otherwise taken for granted, or the close inspection of how

Sociology of law and science  89 knowledge is made and travels through both law and science, will continue to require conceptual and methodological innovation and an attention to more diverse sites. In the same way as both legal scholarship and STS have been criticized for not sufficiently paying attention to silenced voices (Puig della Bellacasa 2013; Pollock and Subramaniam 2016), we may also wish to see ‘law and science’ scholarship more openly taking on sites and questions that are less tied into Western contexts, and less focused on the formal institutions of science (and their own biases).

FUNDING ACKNOWLEDGEMENTS We are grateful to the AHRC (AH/J011495/1; 340 25930), British Academy (EN160164), ESRC (ES/S013873/1), and Wellcome Trust (209519/Z/17/Z; 103917/Z/14/Z; 094205/Z/10/Z; 106612/Z/14/Z) for funds which have supported work from which this chapter draws.

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Sociology of law and science  91 Jasanoff, Sheila (ed). 2011. Reframing Rights: Bioconstitutionalism in the Genetic Age. Cambridge, MA: MIT Press. Kirkland, Anna. 2016. Vaccine Court: The Law and Politics of Injury. New York: NYU Press. Latour, Bruno. 1992. ‘Where are the Missing Masses? The Sociology of a Few Mundane Artefacts’. In Weibe Bijker and John Law (eds). Shaping Technology-Building Society: Studies in Sociotechnical Change. Cambridge, MA: MIT Press, 225–59. Latour, Bruno. 2002. La Fabrique du Droit. Paris: La Decouverte. Laurie, Graeme and Shawn Harmon. 2015. ‘Through the Thicket and Across the Divide: Successfully Navigating the Regulatory Landscape in Life Sciences Research’. In Emilie Cloatre and Martyn Pickersgill (eds). Knowledge, Technology and Law. Abingdon: Routledge, 104–18. Lawless, Christopher. 2012. ‘The Low Template DNA Profiling Controversy: Biolegality and Boundary Work Among Forensic Scientists’. Social Studies of Science 43(2), 191–214. Leclerc, Olivier. 2005. Le juge et l’expert. Contribution à l’étude des rapports entre le droit et la science. Paris: LGDJ. Lezaun, Javier. 2012. ‘The Pragmatic Sanction of Materials: Notes for an Ethnography of Legal Substances’. Journal of Law and Society 39(1), 20–38. Levidow, Les. 1998. ‘Democratizing Technology—or Technologizing Democracy? Regulating Agricultural Biotechnology in Europe’. Technology in Society 20(2), 211–26. Lynch, Michael and Simon A. Cole. 2005. ‘STS on Trial: Dilemmas of Expertise’. Social Studies of Science 35(2), 269–311. Lynch, Michael and Ruth McNally. 2003. ‘“Science”, “Common Sense”, and DNA Evidence: A Legal Controversy About the Public Understanding of Science’. Public Understanding of Science 12(1), 83–103. Marres, Noortje. 2015. ‘Why Map Issues? On Controversy Analysis as a Digital Method’. Science, Technology, & Human Values 40(5), 655–86. Mawani, Renisa. (2009). Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871–1921. Vancouver: University of British Columbia Press. M’charek, Amade. 2008. ‘Silent Witness, Articulate Collective: DNA Evidence and the Inference of Visible Traits’. Bioethics 22(9), 519–28. M’charek, Amade, Rob Hagendijck and Wiebe de Vries. 2013. ‘Equal Before the Law: On the Machinery of Sameness in Forensic DNA Practice’. Science, Technology, & Human Values 38(4), 542–65. Merry, Sally E. 2004. ‘Colonial and Postcolonial Law’. In Austin Sarat (ed). The Blackwell Companion to Law and Society. Oxford: Blackwell Publishing, 569–88. Merry, Sally. 2012. ‘What is Legal Culture? An Anthropological Perspective’. In David Nelken (ed). Using Legal Culture. London: Wildy, Simmons and Hill, 52–76. Morse, Stephen J. 2004. ‘New Neuroscience, Old Problems: Legal Implications of Brain Science’. Cerebrum 6(4), 81–90. Muto, Kaori. 2010. ‘Organ Transplantation as a Family Issue: Living Liver Donors in Japan’. International Journal of Japanese Sociology 19(1), 35–48. Petryna, Adriana. 2002. Life Exposed: Biological Citizens after Chernobyl. Princeton: Princeton University Press. Pickersgill, Martyn. 2011. ‘Connecting Neuroscience and Law: Anticipatory Discourse and the Role of Sociotechnical Imaginaries’. New Genetics and Society 30(1), 27–40. Pickersgill, Martyn. 2012. ‘The Co-Production of Science, Ethics and Emotion’. Science, Technology, & Human Values 37(6), 579–603. Pickersgill, Martyn. (2013a) ‘How Personality Became Treatable: The Mutual Constitution of Clinical Knowledge and Mental Health Law’. Social Studies of Science 43(1), 30–53. Pickersgill, Martyn. D. (2013b) ‘Sociotechnical Innovation in Mental Health: Articulating Complexity’. In Mark L. Flear, Anne-Maree Farrell, Tamara K. Hervey and Thérèse Murphy (eds). European Law and New Health Technologies. Oxford: Oxford University Press, 323–42. Pickersgill, Martyn. 2019. ‘Psychiatry and the Sociology of Novelty: Negotiating the US National Institute of Mental Health “Research Domain Criteria” (RDoC)’. Science, Technology, & Human Values, 44(4) 612–33. Pickersgill, Martyn and Sheila Jasanoff. 2018. ‘ST(&)S’. Engaging Science, Technology, and Society 4, 320–44. Pollock, Anne and Banu Subramaniam. 2016. ‘Resisting Power, Retooling Justice: Promises of Feminist Postcolonial Technosciences’. Science, Technology, & Human Values 41(6), 951–66. Pordié, Laurent and Jean-Paul Gaudillière. 2012. ‘Industrialiser les médicaments ayurvédiques : les voies indiennes de l’innovation pharmaceutique’. Autrepart 63(4), 123–43. Pottage, Alain. 1998. ‘The Inscription of Life in Law: Genes, Patents, and Bio-Politics’. Modern Law Review 61(5), 740–65. Pottage, Alain. 2006. ‘Too Much Ownership: Bioprospecting in the Age of Synthetic Biology’. BioSocieties 1(2), 137–59. Pottage, Alain. 2012. ‘The Materiality of What’. Journal of Law and Society 39(1), 167–83.

92  Research handbook on the sociology of law Pottage, Alain. 2015. ‘Paper Prototypes’. In Emilie Cloatre and Martyn Pickersgill (eds). Knowledge, Technology and Law. Abingdon: Routledge, 223–38. Prainsack, Barbara. 2015. ‘Unchaining Research: Processes of Dis/Empowerment and the Social Study of Criminal Law and Investigation’. In Emilie Cloatre and Martyn Pickersgill (eds). Knowledge, Technology and Law. Abingdon: Routledge, 71–85. Prainsack, Barbara and Martin Kitzberger. 2009. ‘DNA Behind Bars: Other Ways of Knowing Forensic DNA Technologies’. Social Studies of Science 39(1), 51–79. Puig de la Bellacasa, Maria. 2013. Politiques Féministes et Construction des Savoirs: Penser nous Devons! Paris: L’Harmattan. Raman, Sujatha. 2015. ‘Science, Uncertainty and the Normative Question of Epistemic Governance’. In Emilie Cloatre and Martyn Pickersgill (eds). Knowledge, Technology and Law. Abingdon: Routledge, 17–32. Rees, Gethin. 2015. ‘Making the Colposcope “Forensic”: The Medico-Legal Management of a Controversial Visualization Device’. In Emilie Cloatre and Martyn Pickersgill (eds). Knowledge, Technology and Law. Abingdon, UK: Routledge, 86–103. Riles, Annelise. 2000. The Network Inside Out. Ann Arbor, MI: University of Michigan Press. Riles, Annelise. 2005. ‘A New Agenda for the Cultural Study of Law: Taking on the Technicalities’. Buffalo Law Review 53: 973–1033. Riles, Annelise. 2011. Collateral Knowledge: Legal Reasoning in the Global Financial Markets. Chicago, IL: University of Chicago Press. Scheffer, Thomas. 2010. ‘Knowing How to Sleepwalk: Placing Expert Evidence in the Midst of an English Jury Trial’. Science, Technology, & Human Values 35(5), 620–44. Schiebinger, Londa. 2004. Nature’s Body: Gender in the Making of Modern Science. New Brunswick: Rutgers University Press. Seear, Kate. 2020. Law, Drugs and the Making of Addiction. Abingdon: Routledge. Shapin, Steven. 1994. A Social History of Truth: Civility and Science in Seventeenth-Century England. Chicago: University of Chicago Press. Shapin, Steven. 1995. ‘Here and Everywhere: Sociology of Scientific Knowledge’. Annual Review of Sociology 21, 289–321. Shapiro, Nicholas. 2015. ‘Un-knowing Exposure: Toxic Emergency Housing, Strategic Inconclusivity and Governance in the US Gulf South’. In Emilie Cloatre and Martyn Pickersgill (eds). Knowledge, Technology and Law. Abingdon: Routledge, 173–88. Silbey, Susan. (2005). ‘After Legal Consciousness’. Annual Review of Law and Social Science 1, 323–68. Silbey, Susan S. (ed). 2008b. Law and Science: Regulation of Property, Practices, and Products, Vol. 2. Aldershot: Ashgate. Silbey, Susan S. and Patricia Ewick. 2003. ‘The Architecture of Authority: The Place of Law in the Space of Science’. In Austin Sarat, Lawrence Douglas and Martha Umphrey (eds). The Place of Law. Ann Arbor, MI: University of Michigan Press, 75–108. Strathern, Marilyn. 2019. ‘A Clash of Ontologies? Time, Law, and Science in Papua New Guinea’. HAU: Journal of Ethnographic Theory 9(1), 58–74. Toom, Victor. 2016. ‘Whose Body Is It? Technolegal Materialization of Victims’ Bodies and Remains after the World Trade Center Terrorist Attacks’. Science, Technology, & Human Values 41(4), 686–708. Turkmendag, Ilke. 2015. ‘The Voice of Silence: UK Patients’ Silent Resistance to the Assisted Reproduction Regulations’. In Emilie Cloatre and Martyn Pickersgill (eds). Knowledge, Technology and Law. Abingdon: Routledge, 50–68. Winickoff, David E. 2015. ‘Epistemic Jurisdictions: Science and Courts in Regulatory (De)Centralization’. In Emilie Cloatre and Martyn Pickersgill (eds). Knowledge, Technology and Law. Abingdon: Routledge, 173–88.

8.  Sociology of regulation Bettina Lange1

INTRODUCTION This chapter provides a threefold introduction to the sociology of regulation. It does so, first, by arguing in sections one and two that regulation studies are a distinct field, and not just a sub-category of the sociology of law. Nevertheless, regulation studies have significantly contributed to addressing core themes in the sociology of law. Among these are the constitutive role of law in creating social order through meaning-making in the form of ‘knowledge regulation’, and inquiry into how social change is achieved through law by examining the regulation of technology, as well as regulating through technological means. Second, the chapter argues in section three that regulation studies have also contributed to other substantive fields of sociological inquiry, including environmental sociology. It illustrates this through the example of reforming administrative law permits for access to scarce water resources. This suggests that sociological conceptions of law can enrich reform debates. Third, the penultimate section of this chapter introduces a meta-level take on regulation studies through the lens of a sociology of knowledge. What social forces steer what we know and do not know about regulation? This section argues that the individual positionality of researchers, as well as political and material economic and forces such as financial crises and a shift to new forms of governance, have contributed to shaping regulation studies.

WHAT ARE REGULATION STUDIES? We may be witnessing a renaissance of regulation studies with regulation, including heavily interventionist state ‘command and control’ regulation, up on the policy agenda in a number of jurisdictions due to various crises, such as the Covid-19 global 2019–21 public health crisis, as well as the climate crisis (Coronavirus Act 2020; Oosthoek and Gills 2007). In the European Union, the UK’s decision to leave the bloc has renewed debate about whether, how and to what extent regulatory standards for products and services need to be harmonized among different countries in order to facilitate trade between them (Boffey 2020). Moreover, we now have also meta-regulatory agencies, such as the British Better Regulation Executive (BRE) – part of the UK government department for Business,

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  Thanks to Philip Williams for excellent research assistance and the UK Natural Environment Research Council (NE/L010364/1) for funding the work discussed in section 3.

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94  Research handbook on the sociology of law Energy and Industrial Strategy – that oversee the work of other regulatory organizations. Somewhat ironically, BRE (2020) monitors initiatives for the reduction of regulatory burdens in order to ensure that regulation is ‘smart’, ‘better targeted’ and ‘less costly’ to business. There are also proposals in the UK to establish a new media regulator to tackle online harms, such as bullying, hate speech and dissemination of terrorist propaganda (Department for Digital, Culture, Media and Sport, Home Office 2019). Australia has already established a new eSafety Commissioner who can require social media companies to remove harassing or abusive messages (E Safety Commissioner, undated). Academic analysis of these regulatory activities contributes to core themes in the sociology of law, such as recognition of plural normative orders and the role of positive state law in enacting social control, and its limited capacity to effect social change. This affinity between sociological inquiry and regulation studies is also illustrated by a sociological definition of law that is nearly synonymous with a definition of regulation: As rules, law refers to an institutionalized complex of norms that are intended to regulate social interactions and integrate society. The practices of law refer to the whole of roles, positions, interactions, and organizations that are involved with those norms in variable ways (Deflem 2008, 6).

Hence, understanding links between regulation studies and sociology of law also depends on how we define regulation. Narrow definitions of regulation focus on the setting of standards, the collection of information about the behaviour of regulated individuals and organizations in relation to those standards, and the enforcement of standards (Black 2005,11; drawing on Hood et al. 2001, 23, referred to in Brownsword et al. 2017, 6; Scott 2001, 331). Further variations of these narrow definitions consider regulation as composed of rules and standards that are formalized by public administrations, in contrast to legislative rules defined by parliaments and judicial decisions of the courts. These variations also recognize hybrid regimes made up of different types of legal rules (see, for example, Levi-Faur 2011, 6). The concept of regulation has, however, been extended in various ways. First, according to a sociological ‘conventionalist approach’2 regulation includes all those activities that are labelled by social actors themselves as regulatory (Black 2002). For instance, the work of non-governmental organizations (NGOs) may be considered as regulatory; for example, when trade associations develop standards for business practices even though there may be no enforcement (Levi-Faur 2011, 8). Similarly, the label ‘regulatory agency’ has been applied to a range of ‘integrity agencies’ that seek to ensure accountability for and legitimacy of regulatory action, such as human rights ombudsmen, anti-corruption commissions and electoral monitoring bodies (Levi-Faur 2011, 13). Second, from a post-structuralist sociological perspective, any form of social control, such as conceptions of self, as well as political and economic belief systems and institutional

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  Black also identifies a functionalist approach that defines regulation according to the particular task the regulatory activity seeks to accomplish, such as risk minimization. She also recognizes an essentialist approach that requires some elements of a social practice such as ‘institutionalized norm enforcement’ to be present in order for an activity to be labelled ‘regulation’ (Levi-Faur 2011, 5).

Sociology of regulation  95 frameworks, are considered as ‘regulating’; not through linear cause-effect chains, but in more diffuse, polycentric and often implicit rather than explicit ways (Harris 2011; Rose et al. 2006; Agrawal 2005; Foucault 1997,82). Third, behavioural economics have expanded conceptions of regulation beyond the application of specific, transparent, targeted tools and conscious, deliberate human responses to them, to include the creation of choice architecture. For instance, ‘nudging’ – a regulatory technique now employed in a range of jurisdictions around the world – provides signals for behavioural change, such as the display of healthy food options at eye-level height in a canteen, that work on a subconscious level (Yeung 2016; Thaler and Sunstein 2008). Hence nudging refers to a wider range of regulatory steering beyond that captured in narrow definitions of regulation: narrow definitions of regulation refer to the setting of explicit standards, as well as their communication and enforcement, for example through sanctions. But extending a definition of regulation too widely can make rigorous, in particular empirical, research more difficult by obscuring what the ‘unit of analysis’ actually consists of. A sufficiently precise definition of regulation matters for generating quantitative data; for instance, the ratio between regulation and deregulation. Understanding how much ‘regulation’ and ‘deregulation’ there actually is sheds light on the evolving nature of the social contract between a state, its citizens and the natural environment (Serres 2011). Hence, sufficiently specific definitions of regulation also matter for debates about whether to consider new initiatives, such as business self-regulation that is backed up by state enforcement as a last resort, or the introduction of greater diversity in markets in order to deliver regulatory outcomes or services as a form of ‘deregulation’ (Lobel 2012, 66). How do we know whether deregulation is merely a limited trend in the contemporary political landscape (Levi-Faur 2011, 16)? A backlash against the inflationary use of the term ‘regulation’ has already begun. Some researchers focus on rule-making as at the heart of regulation and distinguish this from other types of governance and policy tools, such as subsidies, taxation, redistribution and public ownership (Levi-Faur 2011, 4). For the purposes of this chapter, I define regulation as all those social actions in real or cyberspace that generate political, economic, legal or social norms intended to steer behaviour, with those norms being embedded in institutional frameworks for implementation. Hence, sociology as well as economics and political science have shaped definitions of regulation and regulation studies (Jessop 1995). The next section focuses on links between the sociology of law and regulation studies in the context of ‘knowledge’ and ‘technology regulation’.

INTERSECTIONS BETWEEN SOCIOLOGY OF LAW AND REGULATION STUDIES Knowledge Regulation From the late 1970s onwards, regulation was mainly understood as being a response to and justified by market failures, while during past decades regulation has been increasingly understood as risk management (O’Casey 2018; Shearing and Johnston 2005; O’Malley 2005). Risk has been of interest both to sociologists and regulation researchers (Beck 1992). It refers to the probability of sometimes very uncertain future events materializing. Hence,

96  Research handbook on the sociology of law regulation scholars have explored how risks are perceived and responded to by a range of actors (Brownsword et al. 2017, 9). In the public policy sphere, risk regulation is also discussed as a challenge to achieving democratic control over innovation (Bennett Moses 2017, 582). Hence, regulating risk is not just concerned with minimizing the likelihood of risks materializing, but also with avoiding that regulation stifles innovation (Bennett Moses 2017, 588). Both of these objectives place knowledge practices – such as constructing an understanding of risks and imagining future worlds – at the heart of regulation. Interest politics, including lobbying and building advocacy coalitions (Weible et al. 2019), by themselves cannot explain the design and implementation of regulatory regimes, since knowledge about what is to be regulated by whom evolves, and can change conceptions of interests. A wide range of knowledge practices, formally commissioned studies and applied research as well as taken for granted tacit knowledges and professional expertise of public policy makers, regulators and citizens, matter in regulation (Hecker et al. 2018). Some regulation studies focus on knowledge practices that generate specific outcomes created by so-called knowledge agents: ‘concrete intellectual and scientific product found in publications, conferences, websites, and declarations of advisory groups’ (Stone 2017, 340). But, in addition, the images of the social world that formal legal rules themselves project, and more diffuse knowledge practices engaged in by multiple organizational and individual actors linked together in networks that can no longer be traced back to a discrete specific knowledge agent, matter. Knowledge regulation – that is, regulating knowledge practices and using them for regulation, also referred to more broadly as ‘knowledge governance’ (Stone 2017) – has been a key theme in regulation studies. One of the reasons for this is that knowledge practices are an aspect of constructing relationships of power, and power is at the heart of regulatory capacity. When regulation seeks to change entrenched ways of doing business or the task of regulating itself, it can entail ‘speaking truth to power’ (Wildavsky 2007). Moreover, challenging established ways of understanding the social world in order to regulate may render transparent competition between different knowledge practices (Stone 2017, 340). For instance, economics significantly shape regulatory practice at international, regional and national levels (Stone 2017, 346). In the US, the UK and the EU, regulatory impact analysis (RIA) is used as a procedural device; it is based on neo-classical economics in order to quantify and balance the costs and benefits of regulation.3 RIA assesses ex ante – usually when parliamentary primary or secondary legislation is drafted, or in the US also when agencies promulgate rules (OECD 2015) – the financial impact of a regulatory regime for businesses. In some jurisdictions, such as the UK, the costs and benefits for regulatory agencies and, where relevant, third sector organizations that deliver welfare state services are considered. Economics can also have a deeper cultural impact by shaping fundamental assumptions about how regulatory regimes work. For instance, public choice theory, as set out in George Stigler’s (1971) work, is located in the context of US political culture. It argues that politicians and regulators are likely to supply regulation in response to demand generated by the regulated; for example, business organizations.

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  Note that RIAs may not be conducted for temporary but nevertheless far-reaching and very interventionist emergency legislation. The UK Government provided a summary of the unmonetized impacts of the Coronavirus Bill 2020.

Sociology of regulation  97 Politicians and regulators may thus maximise their own economic benefits, such as being re-elected to office, or expanding the mandate and resources for a regulatory agency. Knowledge practices matter not just because the images of the social world they construct can influence decisions about whether to regulate, but they can also steer regulatory strategies. For instance, some regulation literature explores surveillance tactics which rely on the production of self-knowledge in order to regulate individuals and organizations (Foucault 2020). Nowadays, such self-regulation is achieved by surveillance, being not just a means of control but also entertainment (Timan et al. 2017, 737). In addition, an ‘underclass’ is not alone in being subject to surveillance; any ‘productive citizen’ can be subject to new forms of more opaque, abstract and numerical surveillance; for example, in the context of employment or retail banking. Even those in government or other positions of power may be subject to ‘sousveillance’ from citizens ‘below’, enabled by wider access to technological devices such as drones. Surveillance has also become more democratic when it is participatory. Social actors, including consumers observe each other; for example on ‘Youtube’, in chatrooms and in ‘participatory Panopticons’ (Timan et al. 2017, 739). The Chinese social credit system, in contrast, is a stark illustration of widespread, participatory, authoritarian surveillance. Citizens as well as firms observe each other’s compliance with community norms, including payment of debts, with sanctions for non-compliance including tax deductions and limitations on access to education and markets, enforced by Chinese state authorities (Liang et al. 2018). Advances in artificial intelligence (AI) that enable the mining of ‘big data’ further promote knowledge regulation. But capacity for more or new forms of knowledge does not necessarily transcend stereotypical conceptions of the social world (Brownsword et al. 2017, 26). Racial bias, for instance, has been reproduced in the use of big data sets by US state courts when conducting risk assessments of offenders in the context of decisions about bail and sentences (Raso et al. 2018, 23). More fundamentally, knowledge practices such as AI are becoming wired into the economic structures of contemporary societies. Large scale data about individual consumers’ behaviour now constitute a source of economic value in their own right. In response, knowledge regulation covers new territory; for example, by adapting existing legal rules on privacy to the regulation of informational capitalism (Cohen 2019). Political innovation also drives the expansion of knowledge regulation. For instance, knowledge practices are an integral part of experimentalist governance, which shifts the emphasis from centralized state regulation to regulation by local communities. Experimentalist governance draws on various forms of continuous learning by central state and local actors. This is based on feedback by those directly affected by the process and outcomes of regulation, and can include reforming regulatory standards (Sabel and Zeitlin 2012). Experimentalist governance also promotes knowledge regulation because it co-ordinates the behaviour of regulators and regulated. Co-ordination, in turn, involves approximating ways of understanding the social and natural world, rather than merely imposing legal rules (Lobel 2012, 66). Empirical studies of experimentalist governance have shown that enhanced exchange of information between regulatory inspectorates, firms, local business and workers’ associations can resolve conflicts and contribute to the successful implementation of legal regulation of working conditions, such as those stipulated in short-term labour contracts during the carnival season in Brazil, as well as health and safety regulation of Brazilian car

98  Research handbook on the sociology of law manufacturing (Coslovsky et al. 2011, 327). Here, the ‘sub-politics of regulatory enforcement’ are associated with ‘scientific experimentalism’, since experience and new evidence rather than hard bargaining around fixed preferences, inform learning and the implementation of legal rules (Coslovsky et al. 2011, 330). Once knowledge regulation is adopted it can become self-sustaining. Its co-operative rather than adversarial relationships may engender trust which, in turn, facilitates the sharing of information between regulators and the regulated (Lobel 2012, 71). As more information is shared, knowledge regulation rests on firmer foundations and can become more targeted and effective in achieving legal objectives. At times, knowledge regulation is not so much about developing new insights, but avoiding old ones being lost, or recovering them. For instance, regulatory responses to the Covid-19 crisis in the UK have highlighted difficulties in shifting public administration and private businesses back to modes of state interventionist regulation when this has not happened for some time due to the pursuit of market based and self-regulatory regimes. Such difficulties became apparent in, for example, the UK Government’s decision to finance a big consortium of firms, Ventilator Challenge UK, for the manufacture of additional ventilators, instead of focusing during the initial phase of the outbreak on financing an increase of production in companies already producing existing ventilator models (Hughes et al. 2020). To summarize, knowledge regulation is a central feature of contemporary regulatory practices, not just in various jurisdictions, but also in multi-level governance regimes where knowledge networks can link international, regional, national and local levels of governance (Stone 2017, 346). There are also limits to knowledge regulation; for instance, when scientific understandings are ‘pervasively’ at odds with ‘law, moral codes’ or other normative orders underpinning regulation (Brownsword et al. 2017, 17). Moreover, empirical studies have cast doubt on whether policy makers use formal knowledges, such as evidence, comprehensively or rationally (Stone 2017, 349). In addition, populist political movements, which can be observed throughout the course of history but are current again, promote scepticism about the use of technocratic expert knowledges in public policy-making (Merton [1942] 1973, 255, 266). As Michael Gove, a senior minister in the UK cabinet office stated in the context of the Brexit debates: ‘we don’t need experts’ (Mance 2016). However, in the context of the Covid-19 pandemic, we see a u-turn on this position in some jurisdictions, such as the UK, with experts such as chief medical officers closely involved in making and communicating public health policy that also limits civil liberties and business activity (Pym 2020). Whatever we perceive as the scope of knowledge regulation, examining its various facets contributes to sociology of law debates about how state law is embedded; not just in social norms and practices, but linked to these, various ways of seeing the world. Technology regulation sheds further light on sociology of law debates. Developing Sociological Conceptions of Law through Studies of Technology Regulation Debates about technology in regulation studies point to its dual nature; that is, new technologies not only create demand for new regulatory interventions, but can also assist in efforts to regulate, for instance when AI is used for online tax collection (Brownsword et al. 2017, 11). Definitions of technology as ‘any tool or technique, any product or process, any physical equipment or method of doing or making, by which human capability is extended’ (Bennett Moses 2017, 576) illustrate how central technology is to regulation and

Sociology of regulation  99 governance. Bennett Moses (2017, 582) even suggests that ‘all governance is technology governance’, since the latter covers a wide range of regulatory objects, such as language and systems of regulation themselves. Similarly, Lessig (1999) considers code to be a powerful form of regulation. Sociological perspectives further illuminate the social processes inherent in technology regulation. Technology, can enable greater co-ordination of human actions, for instance through connections between technical devices (for example, standardized plugs) (Bennett Moses 2017, 577). Sociological perspectives also highlight that technology does not just work in instrumental and mechanistic ways; politics and values are inherent in technological design (Winner 1980). More specifically, technology regulation develops a sociological conception of law by identifying a new dimension of the ‘gap’ problem of law. Traditionally the ‘gap problem’ is understood as the gap between ‘the law in the books’ and the ‘law in action’; that is, between formal positive state law on the one hand, and its interpretation and selective implementation in practice on the other (Hawkins 1984). Technology regulation raises a ‘gap problem’ that is distinct in two ways. First, there can be a substantive disconnect between law and technology because of the ‘disruptive’ nature of technology (Brownsword et al 2017, 3), evidenced by the limited applicability of existing legal doctrine; for example, in relation to property, patentability and consent to new technologies. Also, existing legal and social norms that legitimize legal doctrine may be disrupted by new technologies. Sources of standards for human behaviour are pluralizing and changing across cyber and real space; also in light of the fact that physical and data worlds now often constitute one life-space for social actors (Timan et al. 2017, 744). A second dimension of the ‘gap’ problem in the context of new technologies is a procedural disconnect between the speed with which technology develops and the speed with which legislation adjusts to it. If legal regulation comes too late, the technology and its effects will be difficult to change. But if legal regulation is put in place too early, it may be based on insufficient information about how the technology works and its effects (Brownsword et al. 2017, 21). Hence, early regulation of new technologies creates the risk of under or overregulation (Bennett Moses 2017, 589). A sociological perspective provides a distinct take on how to close such law-technology gaps by emphasizing not legal principles, but the institutional environment in which law operates. How we ‘institutionally manage the adjustment of law and regulation in light of ongoing sociotechnical change’ becomes paramount (Bennett Moses 2017, 573). In contrast to this, a legal perspective focuses on principles, which by themselves may not solve the gap problem. For instance, the precautionary principle provides lawmakers with legal power to act, even before there is clear evidence of negative effects of a new technology (Bennett Moses 2017, 589). Similarly the Oxford principles of climate engineering advocate ‘governance before deployment’ of technologies (Reynolds 2017, 811). The principle of technological neutrality seeks to enable technological development by merely prescribing a maximum level of risk, with risk assessments being carried out in such a way that no particular technology is favoured or disadvantaged. Here, risk refers to the probability of loss of life or harm to humans or the natural environment, independent of the specific technological source of the harm (Bennett Moses 2017, 585–6). But regardless of whether these principles are formulated in broad or specific ways, they only indicate approaches to dealing with the ‘gap’, leaving still uncertain the role that state law can play in steering

100  Research handbook on the sociology of law behaviour. Moreover without consideration of, for example, the sustainable development principle, these legal principles may not reconcile innovation with economic development. Thus, debates in regulation studies about the law-technology gap contribute to a sociology of law by highlighting the importance of further analyzing law’s economic and political institutional environments, which go beyond accounts of positive state law informed by legal principles. But sociological perspectives and regulation studies also intersect in more practical and substantive ways. Regulation studies contribute to various substantive fields of sociological inquiry, including environmental sociology, and they can be harnessed for thinking about how to reform actual regulatory regimes.

REGULATION STUDIES’ CONTRIBUTION TO ENVIRONMENTAL SOCIOLOGY: REFORMING ACCESS TO WATER RESOURCES Regulation studies contribute to the sociology of law, and thereby also to other substantive fields of sociological inquiry. For instance, studies of how family relationships are regulated by religious and medical professions, as well as state law, are relevant for the sociology of family and kinship (Smart 2012; Donzelot 1979). Studies of regulating health care regimes enrich medical sociology (Davies 2013; Newdick 2014). In the context of the climate crisis, studies of innovative business regulation and community self-regulation contribute to the development of environmental sociology. This matters in light of research that has pointed to significant deficits in enforcing in particular ‘command and control’ state regulatory environmental standards (Steinzor 1998). Hence, this section identifies links between sociological perspectives of law, regulation and the natural environment in the context of ongoing debates about how to reform administrative permits for access to scarce water resources. Here, sociological insights into how economic motivations and formal state law can co-ordinate human behaviour, how this may translate into social change in relation to water use, and the role of knowledge practices played in this, underpin the idea of ‘bubble permitting’. How to provide equitable and sustainable access to limited ground and surface water has become a pressing issue in a number of jurisdictions, such as Colorado and California in the US, South East England, as well as South Africa and Southern Australia, where water resources are becoming more scarce in the context of a changing climate. Traditionally, access to water is granted by a regulatory agency on the basis of administrative permits issued to abstractors, such as farmers, industry or water utilities. Such abstractions have been perceived as an individual entitlement with limited consideration of water conservation. This is particularly the case when abstraction permits provide for rights similar to private property rights,4 such as in Australia (Australian Law Reform Commission 2016: para. 18, 50–3). But this is also the case when permits merely provide a legitimate expectation to receive water, since permits used to be granted for long time

4   The English common law does not provide for private property rights in water flowing from time to time in water courses, but such rights may exist for water in reservoirs. Property rights to water can be created by statute (Canal & River Trust v Thames Water Utilities Limited [2018] EWCA Civ 341, para. 6).

Sociology of regulation  101 periods. In England and Wales, time limited abstraction permits (called licences) were only introduced through the Water Act 2003. Partly or wholly time limited licences now constitute about 28.6% of all licences (Defra 2019, 21). This perception of licences providing an individual entitlement to water is also promoted by various degrees of legal protection for abstractions. In England and Wales the regulator has to provide compensation, potentially including the costs of an alternative resource option (Warwick 2012, 662), if a permit is varied or revoked – unless the abstractor agrees to changes. Increasingly, such legal protections are limited. For instance, English and Welsh water companies no longer have to be compensated if their abstraction licences are varied or revoked (S. 61 (1) WRA 1991).5 There is also no duty to compensate if the regulator can prove that the specific abstraction is causing serious environmental damage (S. 27 Water Act 2003).6 In contrast to the individual entitlement approach, ‘bubble permitting’ seeks to promote collective action for water allocations by facilitating exchanges of allocations between abstractors.7 ‘Bubble permitting’ places a cap on the water available for abstraction in a catchment. The size of the ‘bubble’ of available water is determined also with reference to water saving targets. Such targets are envisaged to lead to social change, that is reduced water use, if they are not merely imposed by a regulatory agency, but are grounded in socio-economic norms that are agreed by a community of water users in a catchment, including abstractors, domestic water users and those who discharge water; for example, as effluent from water treatment or industrial plants. In addition, bubble permitting adjusts flexibly the degree of legal protection available for abstractions with reference to criteria, such as how critical the water is for an abstractor’s business, the volume of water needed and how efficiently the abstractor uses water – in comparison with other abstractors in similar industries. Such a collective action approach is different from allocations of water on a ‘first come, first served’ basis; for example, in the US and the UK (Christian-Smith et al. 2012, 37–8; AEA Technology 2012, 42). Economics knowledges further justify this approach. For instance, in the UK, the Environment Agency (EA) and Natural Resources Wales (NRW) have to consider the likely costs when discharging their functions to protect and enhance the environment (s. 4(1) Environment Act 1995), as well as the likely costs and benefits when acting as a regulator (s. 39(1) Environment Act 1995), with costs including costs to the environment (EA 2004: para. 4.4.). Regulators, such as the EA and NRW, also have to consider the

5   Also, no compensation is due if the EA/NRW revoke a non-time limited abstraction licence if it has not been used for four years or longer (S. 39 A 9 (a) WRA 1991). When abstractors apply for renewal of a time limited licence, the EA/NRW can limit the volume of water that can be abstracted under the new licence. 6   In addition, clause 80 Environment Bill 2019–20 (HC) proposes that no compensation will be payable for the revocation or variation of an abstraction licence in England after 1 January 2028 if the Secretary of State considers this necessary for meeting a ‘relevant environmental objective’, or in order to ‘otherwise protect the water environment from damage’. Clause 80 also proposes that licences in England can be varied without compensation if the abstractor has used less than 75% of the water allocated to him/her under the licence during each of the 12 years preceding the date of the notice of the proposed variation of the licence. The new reduced allocation must, however, meet reasonable requirements of the licence holder for water. 7   For a further discussion of institutionalist approaches to governing economic exchange relationships see the chapter by Iage Miola and Sol Picciotto in this volume.

102  Research handbook on the sociology of law desirability of promoting economic growth (s. 108 Deregulation Act 2015). Significant emphasis on water saving targets – for example, when the size of the bubble is determined – can free up water allocations in a catchment, thus enabling new economic activity that may need access to water. Finally, bubble permitting seeks to generate regulatory effects by harnessing the institutionally framed socio-economic motivations of abstractors. It seeks to facilitate access to water through various exchanges of allocations between abstractors, promoted by increasingly tightening the ‘cap’. Exchanges can take various forms. First, in the case of bartering, a water utility may transfer some of its allocation to a farmer. In return, the farmer will reduce its use of pesticides and nitrates and thereby save the water company water treatment costs (for example, RSPB 2013). Second, there may also be reciprocity exchanges, such as a farmer transferring a portion of his/her water allocation to a neighbouring farmer, and vice versa, when he/she plants crops in need of extra water. Third, in a number of catchments, such as in California, the Murray Darling Basin in Southern Australia, and envisaged for priority catchments in the UK, allocations of water are exchanged and paid for with money. This can involve temporary or permanent trading of permits or shares in water. Such trading harnesses a specific economic incentive. Those abstractors for whom it is least costly to reduce consumption of water, for instance through more water efficient production technology or conservation, will do so. They may then sell on the allocations that they no longer need to those abstractors for whom it would be more costly to reduce water consumption. Such water markets can also be further embedded in institutional frameworks and steered by rules. They may include water banks, as in the US state of Idaho, which enable abstractors to sell their surplus water to the bank and buy from it extra allocations during seasonal shortages. Pricing rules which reward – for example, winter/spring transfers into the bank, thereby reducing the risk of water scarcity during summer – can further promote optimal water use (Kraemer and Banholzer 1999, 80).

A CRITICAL TAKE ON REGULATION STUDIES THROUGH THE LENS OF A SOCIOLOGY OF KNOWLEDGE A sociology of regulation would be incomplete without asking what social forces shape the evolution of regulation studies. This raises sociology of knowledge questions about how a particular field of study becomes socially constructed. Such questions identify blind spots on the map of regulation research, and thus develop research agendas. There is a long tradition of links between the sociology of knowledge and sociology of law because key thinkers, such as Pitirim Sorokin and Theodor Geiger, contributed to both fields (Berger and Luckmann 1967, 23–4). Core concepts such as the social construction of reality and governmentality have been explored both from the perspective of a sociology of knowledge and the sociology of law (Deflem 2008, 231; Banakar 2000). The sociology of knowledge, which is core to sociological theory, examines why only some perceptions of the social world are accepted as relevant knowledge (Berger and Luckmann 1967, 29). This builds on Durkheim’s inquiry into ‘social facts as things’ and Weber’s work about the ‘subjective meaning-complex of action’. It seeks to understand how ‘subjective meanings become objective facticities’ (Berger and Luckmann 1967, 30).

Sociology of regulation  103 Knowledge is the ‘certainty that phenomena are real and that they possess specific characteristics’ (Berger and Luckmann’s 1967, 13). The social world can be real in different ways, to different degrees for different actors, depending on the cultures in which knowledge is generated (Berger and Luckmann 1967, 15). Hence, a sociology of knowledge prompts us to inquire into subjective and objective reality; that is, reality as defined in individual consciousness and by institutions (Berger and Luckmann 1967, 167). So how do the individual academic interests of regulation researchers, and thus their subjective perceptions of ‘real’ regulation issues, shape the field? How do ‘objective’ – that is, more widely applicable institutional conceptions of what regulation is, and how it should be studied – influence regulation research agendas? In terms of ‘subjective perceptions’ we do not know much about what shapes individual regulation researchers’ academic interests. Monographs or articles seldom include accounts of how researchers became interested in their topic, and why they use – apart from research design justifications – particular conceptual ideas and methodologies for choosing and defining their object of inquiry. Halliday’s and Schmidt’s interviews (2009) of socio-legal regulation researchers (Chs. 2,3,9,13,14,16,21) suggest that a mixture of intellectual curiosity, the desire to generate knowledge about little known regulatory practices, individual researchers’ moral concerns about justice in the design and implementation of legal rules, as well as wanting to shed light on how economic power works, empathy for social activist struggles and serendipity were reasons for the choice of regulation research topics. Sociological analysis of knowledge production provides further concepts through which we can develop critical analysis of how regulation research agendas become shaped. It suggests that secondary socialization matters (Merton, [1942]1973, 259). This entails the need to internalize ‘institutional or institution-based “sub-worlds”’ (Berger and Luckmann 1967, 158). These ‘sub-worlds’ can reflect the interests represented in them and are the result of an increasing division of labour which is associated with the rise of specialist knowledge in contemporary societies. Hence, secondary socialization also entails acquiring role-specific knowledge (Berger and Luckmann 1967, 160); for instance, through language and conversation, by ‘“talking through” various elements of experience and allocating them a definite place in the real world’ (Berger and Luckmann 1967, 173). In the context of regulation studies, this occurs also through the diffusion of particular vocabularies, such as Foucaultian concepts; for example, governmentality and discourses or neo-classical economic terminology, such as market failures, including externalities as grounds for regulatory intervention (see, for example, Simon 2017; Ogus 2004). But there is a blind spot about how regulation researchers’ own positionality and social characteristics, such as gender, feature in ‘secondary socialization’, and may have shaped academic knowledges about regulation. For instance, there is not much regulation research from a feminist perspective (but see, for example, Thomasen 2018; Munro and Stychin 2007; Hunter 1992). The development of new, ethically controversial technologies, such as the use of AI in innovative weapon systems, also raises urgent questions about regulation researchers’ position when generating knowledge about regulating new technologies. In terms of institutional conceptions of what constitutes regulatory processes worth studying, there are various ‘schools of thinking’ that have left their imprint on regulation studies. For instance, Niklas Luhmann’s and Gunther Teubner’s version of systems-theory has framed a range of regulation studies that have explored the limits of communication

104  Research handbook on the sociology of law between the social sub-systems of law, economics and politics, and thus constraints on direct state regulatory interventions (Egner and Pott 2010, 18; Teubner 1989, 751). Bruno Latour and Michel Callon’s take on actor-network theory (Latour 1996) has also been influential. This foregrounds material artefacts such as laboratory equipment and other inscription devices, making ideas ‘real’; for example, in relation to what is considered a suitable regulatory object (Lezaun 2006). Moreover, political and economic material conditions have shaped institutional conceptions of what counts as relevant knowledge about regulation. As Marx’s historical materialism suggests, material conditions of social action shape ideas about them, and for Berger and Luckmann (1967, 18) there is a ‘relationship between thought and an “underlying” reality other than thought’. Examples of these include political programs such as ‘neo-liberalism’, which have steered regulation studies towards analysis of new public management of regulatory action under the heading of ‘regulating by numbers’; that is, quantified performance metrics applicable to both regulated and regulatory organizations (Kurunmaki et al. 2019). Linked to deregulation of banking, the 2007/8 financial crisis revived interest in institutionalist, including Polanyian, perspectives on the political embeddedness of economic action. The Covid-19 crisis, associated with levels of unemployment significantly higher than those during the 2007/8 crisis, may also do so. The 2007/8 crisis contributed to the further development of an ‘economic sociology of law’; that is, sociological approaches to understanding links between legal and economic action (Ashiagbor et al. 2013, 1). There has been renewed interest in institutionalist approaches in order to explain the empirical puzzle that the financial crisis did not lead to much creative experimentation with new forms of regulation. Instead, there was a return to direct state regulation through nationalisation of some banks and quantitative easing, followed by various forms of self-regulation once the economy had stabilized (Wilson 2012). Thus a critical take on regulation studies through the lens of a sociology of knowledge asks whether and to what extent regulation studies critique ideas that are used as ‘weapons for social interests’ (Berger and Luckmann 1967, 18). Such critiques identify the belief systems that underpin regulatory regimes. This is a first step for developing utopian thinking, most recently in the context of ‘steady state economies’ and ‘net zero emissions’ models as a basis of regulating for sustainable development (Committee on Climate Change 2019; Daly 2014). Hence, at times regulation studies do not just comment on, but also seek to transform the social world, and thereby generate new knowledges. This, in turn, addresses a classic theme in the sociology of law; that is, how regulatory law contributes to social change.

CONCLUSION – WHAT NEXT? This chapter has introduced a sociology of regulation and thereby seeks to point to new research agendas. Regulatory crises such as the Covid-19 global pandemic provide new impetus to ask: ‘what does it mean to live in a safe society, and how do we regulate for this?’ (Williams 2020). Regulation may be expected to achieve more than implementing a narrowly defined human right to security under Art. 5 of the European Convention of Human Rights (ECHR). Article 5 provides for procedural safeguards intended to ensure

Sociology of regulation  105 freedom from unlawful detention by the state. It is, otherwise, merely auxiliary to achieving protection, that is provided by positive obligations imposed upon states through other fundamental rights, such as Art. 8 which guarantees a private and family life, home and correspondence (Powell 2007, 655). Moreover, the Covid-19 public health crisis prompts more research about resolving difficulties of regulating – in a joined up way – in order to achieve different dimensions of a regulatory purpose, such as economic and public order as well as psychological and physical health aspects of being safe. Environmental regimes that seek to regulate for ‘resilience’ across various aspects of, for example, managing water resources are examples of early beginnings of integrated ways of regulating (s. 2(2A)(e) Water Industry Act 1991). Finally, over the course of history we can often see in national polities an arc of regulation that spans regulation, deregulation and reregulation or, in Polanyi’s (2001) terms, the embedding, dis-embedding and re-embedding of economic action in political institutions. Emergency regulatory responses to the Covid-19 pandemic have, however, given rise to new hybrid regulatory regimes. These combine – at the same time, rather than in temporal sequence – highly interventionist state ‘command and control’ regulation, deregulation and community self-regulation. For instance, in the UK and a range of other European countries, such as France, Germany, Ireland, Italy and Spain, governments are providing finance for companies to enable them to pay up to 80% of wages to employees on temporary leave due to Covid-19. This is in response to a governmentordered shut down of parts of the national economy (e.g. The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020).) Governments are also taking deregulatory measures, such as the suspension of elements of competition and company law in the UK to enable supermarkets to co-ordinate actions in the food supply chain. Moreover, state regulatory measures, such as severe restrictions on freedom of movement for citizens in ‘lockdowns’, have been enabled by citizen self-regulation; such as large numbers of people have volunteered to help the infirm and elderly with food/ medicines shopping. Whereas we will find out with hindsight which of these unprecedented combinations of regulatory strategies is effective, we need to ask whether our criteria for assessing regulatory success will change. Sociology of law-inspired research prompts us to examine what turns some communities into sources and legitimizers of social norms for regulation. In addition, a sociology of knowledge perspective, including a longitudinal empirical take, can map whether our understanding of philosophical ideas such as liberty, equality, democracy, identity and responsibility – often deployed in order to gauge the legitimacy of and accountability for regulation (Brownsword et al. 2017, 15) – are also changing in response to emergency regulation, such as in the Covid-19 context.

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Sociology of regulation  107 Harris, Neil. 2011. ‘Discipline, Surveillance, Control: A Foucaultian Perspective on the Enforcement of Planning Regulations’. Planning Theory & Practice 12(1), 57–76. Hawkins, Keith. 1984. Environment and Enforcement: Regulation and the Social Definition of Pollution. Oxford: Clarendon Press. Hecker, Susanne, Muki Haklay, Anne Bowser et al. (eds). 2018. Citizen Science: Innovation in Open Science, Society and Policy. London: UCL Press. Hood, Christopher, Henry Rothstein and Robert Baldwin. 2001. The Government of Risk: Understanding Risk Regulation Regimes. Oxford: Oxford University Press. Hughes, Laura, Michael Pooler and Jim Brunsden. 2020. UK confident of delivering tens of thousands of ventilators [online]. London: Financial Times. [Viewed 26 March 2020]. Available from: https://www.ft.com/ content/3a27f8f0-e0e7-4e5d-8760-b08669baee71 Hunter, Rosemary. 1992. ‘The Regulation of Independent Contractors: A Feminist Perspective’. Corporate and Business Law Journal 5, 165–88. Jessop, Bob. 1995. ‘The Regulation Approach, Governance and Post-Fordism: Alternative Perspectives on Economic and Political Change?’ Economy and Society 24(3), 307–33. Kraemer, Andreas and Kai M. Banholzer. 1999. ‘Tradeable Permits in Water Resource Management and Water Pollution Control’. In OECD (ed). Implementing Domestic Tradable Permits for Environmental Protection. Paris: OECD Publishing, 75–107. Kurunmaki, Liisa, Andrea Mennicken and Peter Miller. 2019. ‘Assembling Calculative Infrastructures’. In Martin Kornberger, N. Pollock, P. Miller et al. (eds). Thinking Infrastructures. Research in the Sociology of Organizations. Bingley: Emerald Group Publishing Ltd, 17–42. Latour, Bruno. 1996. ‘On Actor-Network Theory: A Few Clarifications’. Soziale Welt 47, 369–81. Lessig, Lawrence. 1999. Code and other Laws of Cyberspace. New York: Basic Books. Levi-Faur, David. 2011. ‘Regulation and Regulatory Governance’. In David Levi-Faur (ed). Handbook on the Politics of Regulation. Cheltenham: Edward Elgar Publishing, 3–21. Lezaun, Javier. 2006. ‘Creating a New Object of Government: Making Genetically Modified Organisms Traceable’. Social Studies of Science 36(4), 499–531. Liang, Fan, Vishnupriya Das, Nadiya Kostyuk and Muzammil M. Hussain. 2018. ‘Constructing a Data-Driven Society: China’s Social Credit System as a State Surveillance Infrastructure’. Policy and Internet 10(4), 415–53. Lobel, Orly. 2012. ‘New Governance as Regulatory Governance’. In David Levi-Faur (ed). The Oxford Handbook of Governance. Oxford: Oxford University Press, 65–83. Mance, Henry. 3 June 2016. Britain has had enough of experts, says Gove [online]. London: Financial Times. [Viewed 5 March 2020]. Available from: https://www.ft.com/content/3be49734-29cb-11e6-83e4-abc22d5d108c Merton, Robert K. [1942]1973. ‘The Normative Structure of Science’. In Robert K. Merton (ed). The Sociology of Science. Chicago: University of Chicago Press, 267–78. Munro, Vanessa and Carl Stychin (eds). 2007. Sexuality and the Law: Feminist Engagements. London: Routledge. Newdick, Christopher. 2014. ‘From Hippocrates to Commodities: Three Models of NHS Governance’. Medical Law Review 22 (2), 162–79. O’Casey, Donal. 2018. ‘Risk, Charity, and Boundary Disputes: The Liberalization and Commercialization of Online Bingo in the European Union’. Journal of Law and Social Policy 30, 36–56. OECD. 2015. OECD Regulatory Policy Outlook 2015, Country Profile, United States [online]. Paris: OECD. [Viewed 5 March 2020]. Available from: https://www.oecd.org/gov/regulatory-policy/United%20States-web. pdf Ogus, Anthony. 2004. Regulation: Legal Form and Economic Theory. Oxford: Hart Publishing. O’Malley, Pat. 2005. ‘Governing Risks’. In Austin Sarat (ed). The Blackwell Companion to Law and Society. Oxford: Blackwell, 292–308. Oosthoek, Jan and Barry Gills (eds). 2007. The Globalization of Environmental Crisis London: Routledge. Polanyi, Karl. 2001. The Great Transformation. Boston, MA: Beacon Press. Powell, Rhonda K. 2007. ‘The Right to Security of Person in European Court of Human Rights Jurisprudence’. European Human Rights Law Review 6, 649–62. Pym, Hugh. 2020. Chris Whitty: The man with our lives in his hands [online]. London: BBC. [Viewed 26 March 2020]. Available from: https://www.bbc.co.uk/news/health-51924796 Raso, Filippo, Hannah Hilligos, Vivek Krishnamurthy, Christopher Bavitz and Kim Levin. 2018. Artificial Intelligence and Human Rights: Opportunities and Risks. Harvard: Berkman Klein Centre for Internet and Society at Harvard University. Reynolds, Jesse L. 2017. ‘Solar Climate Engineering, Law, and Regulation’. In Roger Brownsword, Eloise Scotford and Karen Yeung (eds). The Oxford Handbook of Law, Regulation and Technology. Oxford: Oxford University Press, 799–822. Rose, Nikolas, Pat O’Malley and Marianna Valverde. 2006. ‘Governmentality’. Annual Review of Law and Social Science 2, 83–104.

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PART II THE SOCIOLOGICAL CONCEPT OF LAW AND LEGAL SYSTEM

9. Sociology of the rule of law: power, legality and legitimacy Jiří Přibáň

The rule of law is one of the most inflationary concepts used by political leaders, policy makers, judges and other legal professions, and theorists of politics and law alike. It is an intrinsic part of scholarly arguments as much as fierce political battles. It is an invitation to the most abstract speculations on the nature of justice and fairness as much as a specific criterion of accountability and governance promoted by policy makers at local, national and global levels. The World Bank and the International Monetary Fund list the rule of law as a good governance condition of loan grants for the recipient countries; political and legal philosophers treat it as a universal human good, and campaigners all around the world use it as a critical tool to address manifold political and social ills and injustices. The rule of law is treated as a value to be universally praised as much as a particular ideology to be debunked and replaced by substantive political and legal alternatives. Economic liberals inspired by F. A. Hayek’s idea of the rule of law as a spontaneously evolving social order (Hayek 1982, 22) warn against its decline because of the everexpanding welfare state, while scholars inspired by the Critical Legal Studies movement continue criticizing the concept as part of a general critique of political liberalism (Unger 1976, 192). Formal justice is contrasted to social justice, and equality before the law finds its opposite in social inequalities. For some, a sociology of the rule of law is to mainly be a critical job of unmasking political interests and social injustices under the facade of legal neutrality. For others, the idea of the rule of law as a fraud is theoretically simplistic and misleading to the point of intellectual and political nihilism, blocking the possibility to understand why the rule of law is an essential concept of theoretical knowledge and an important tool of practical policies promoted at local, national and global levels. Therefore, in this chapter I initially distinguish between the doctrinal and sociological concept of the rule of law and briefly comment on the anthropological notion of the rule as one of human universals behind the constitution of a societal order. I subsequently discuss some sociological theories of the rule of law and analyze the rule of law as a double-coded genealogy of societal power. Following the legal coding of power, I address the problem of legitimation by legality and its transformation to the problem of legitimation of legality itself. In this analysis, I contrast the formal and substantive concepts of the rule of law and show how the value-based legitimation of the rule of law paradoxically leads to the structural tensions, value conflicts and de-legitimation of the rule of law. I conclude by arguing that this legitimation/de-legitimation loop between the formal and substantive rule of law shows the general societal function of the rule of law transforming the systemic facts of power to the legitimizing values of the political system. 110

Sociology of the rule of law  111

STRONG IDEAS, WEAK FACTS: ON THE PHILOSOPHICAL, DOCTRINAL AND SOCIOLOGICAL CONCEPTS OF THE RULE OF LAW The rule of law is both a metaphysical idea and a social index. As such, it is studied by legal and political scientists and incorporated by philosophers in their prescriptions and speculations. Some believe it is the first stone of civilisation while others criticize it as an example of hypocrisy of the very same civilisation. Rousseau’s overture about chains of civilisation, of which the rule of law is a prominent symbol, is being replayed in many different instrumentations of contemporary critical theory and philosophy. Contrary to this tune, the odes to joy continue praising rationally organised and progressing societies under the rule of law, which expresses the Enlightenment ideals of humanity. The rule of law is treated as another name of legitimate government, respecting civil order and equal rights and promoting democratic values and public accountability of political power. The legitimate rule of law finds its opposite in illegitimacies of arbitrary power which eventually breaks down public trust and replaces it with a private fear of tyrannical government (for an overview of different approaches to the rule of law, see recent edited volumes of Costa and Zolo 2007; Sellers and Tomaszewski 2010). The rule of law as a political ideal of a state governed by the sovereign legal constitution (Rubin 2005) representing moral ideals of peace, civility and equal rights is an intrinsic part of the Kantian legacy. This ideal is close to the doctrine of a constitutional democratic state and the moral idea of justice and civil liberties. Nevertheless, the rule of law can also be formulated in a morally and politically minimalistic sense as the state is prohibited by law from the arbitrary use of power. The rule of law thus considers law an a priori condition of state power and its exclusive criteria and limitation of exercise. This state, rather than protecting what is morally right and just, limits its function to the enforcement of the lawful order within which it has to operate itself (Kirchheimer 1969). However, even this technical and functionalist concept of the rule of law has a profound civilizing impact on society because the law inhibits the exercise of political power and protects citizens against it (Thompson 1975, 266). The scale between the idealistic maximalism and the realistic minimalism of the rule of law, therefore, offers opportunities for both the apotheosis and deconstruction of the very phrase and its cultural and political contextualisation. Students in the United Kingdom typically start with Dicey’s three aspects of the rule of law as the constitutional exercise of power, equality of all citizens before the law and access to the independent courts (Dicey 1959, 195–6), even though this definition is inaccurate and parochial (Shklar 1987, 5). Alternative explorations include more recent works by Alexy, Bobbio, Cohen, Raz, Shklar and many other philosophers and theorists investing their most general ideas about law and justice into the rule of law concept. The rule of law is so prominently associated with political and legal philosophies and theories that sociological and social theoretical explorations of the rule of law are comparatively scarce and limited and, according to some, neglected despite the prominence of positive law in modern politics and society (Krygier 2009, 45). The weakness of sociology and social theory is contrasted to the long tradition of juridical and political theories of the rule of law.

112  Research handbook on the sociology of law Reluctance to tackle the rule of law as a problem of the sociology of law and sociolegal studies beyond the most general and often critical remarks on law’s formality or ideology is even more surprising because of the long tradition highlighting the distinction between methodologies of social and legal sciences. As early as the publication of Georg Jellinek’s General Theory of the State at the turn of the twentieth century (1900), jurists and sociologists distinguished between the state as a legally constituted organisation exclusively regulated by public law and a social organization regulating specific social relations and actions. Legal concepts of the Rechtsstaat – the state as a legal person and roughly translatable to English as the rule of law – were methodologically separated from sociological perspectives focusing on historical, political and cultural contexts of state organisation. The state’s normative unity is typically contrasted to its social and political pluralism (Runciman 1997, 64). For centuries, the state was perceived as the political organization ultimately integrating and regulating the totality of social life. The ‘political’ had the same meaning as the ‘social’. However, in recent times, this domination of political and legal perspectives regarding the state has shifted and ‘the state as political system is now a sub-system in relation to the social system’ (Bobbio 1989, 54). Despite this variety of perspectives and methodologies, disciplines of sociology, theory and philosophy of law share a set of questions regarding the rule of law which illuminates its importance for the social systems of positive law and politics as a principle, doctrine and formula of power legitimation. Is law the first protection against the arbitrary exercise of power, or a mere technique of the same power? Is the rule of law the most important political virtue and moral obligation of all citizens as much as the first principle of the democratic state limited by its legal constitution? Alternatively, is it a Hobbesian machina machinarum constituting the artificial society – the sovereign state in which law is an instrument of social control and a guarantee of civil order? Using Edward Coke’s expression, what function does law as ‘the artificial reason’ (Smith 2014, 154) have in this artificial society? Is it a value neutral technique of real government, or the most precious value of an ideal polity? And what about more recent conceptualisations of Unrechtsstaat – a state officially governed by the laws which, nevertheless, contradict the basic concept of justice as equality before the law?

THE RULE OF RULE AND SOCIETAL ORDER: ON THE ANTHROPOLOGY OF HUMAN UNIVERSALS, POIESIS AND AUTOPOIESIS IN LAW The question whether sociologists of law should study the rule of law as part of the study of legal or social sciences depends on the difference between the question of what law is and how it operates in society. Defining law as the sovereign’s command or the system of rules opens the possibility to understand its normative structure, different modes of interpretation, enforcement and change. On the other hand, defining law as a system of social organisation and communication opens the possibility to comprehend law’s operations in society, their understanding and effects. While moral and political philosophers consider the rule of law an ideal form of just government and legal theorists examine

Sociology of the rule of law  113 its normative, argumentative and interpretive structures, sociologists of law focus on its empirical context, historical emergence, cultural differences, self-identifications and societal evolution (Jensen and Heller 2003). The weakness of the sociological research of the rule of law and the prevalence of doctrinal and speculative approaches is even more striking due to the fact that law was a substantive element in sociological thinking of a number of theorists, not least Emile Durkheim and Max Weber, and because the concept of rule is generally considered one of key human universals by cultural and social anthropology. The requirement of a rule determines the distinction between culture and nature and the constitution of a humanmade order. The prohibition of incest was analysed by Lévi-Strauss as ‘the rule of rule’ and considered one of the three universals of human culture, together with reciprocity as the most immediate form overcoming the opposition between me and the other and the gift as a value transfer transforming the involved persons into partners (Lévi-Strauss 1969, Chs. 3–5). Anthropologists and sociologists treat any rule in general, and the rule of law in particular, as the order creating capacity which maintains the social structure. The meaning of the rule, reciprocity and gift may vary in tribal pre-modern and complex post-modern societies but, as Zygmunt Bauman, recalling the work of Lévi-Strauss, commented: ‘It is above all the rule which cuts off a parcel of the natural universe and transforms it into the venue of cultural praxis.’ (Bauman 1999, 98). Cultural praxis has the order creating capacity which maintains the social structure. The rules created by humans thus separate the order of society from the chaos of the rest of the universe. These rules of order simultaneously delineate the unregulated chaos and operate as rules of exclusion as ‘fundamental, pre-conditioning applicability of all other rules’. (Bauman 1999, 99). The constitution of a societal order by the application of the rule is both poietic in the sense of the order’s creation and autopoietic in the sense of the rule’s self-referentiality based on the binary opposition between the self-ruled order and the outside unruly chaos of society’s environment. The self-constitution of the rule defines what is included and excluded from its order (Luhmann 1995, 34–6). The rule of law, therefore, has functional meaning as the constitution of a human order and symbolic meaning as the identification of a collective self living under this rule and in this order. The classic constitutional imaginary of society as one ethnos living on the same topos under the rule of nomos had been poetically formulated by Thucydides. In Pericles’s Funeral Oration, the Athenians are described as an equal and free people living under the rule of law. The question How are we governed? is inseparable from the question Who are we? The imaginary of society as unity defined by legal rights and guaranteed by political force informs the classical world as much as the rise of modern nations and nationalisms evolving through liberal and republican constitutional regimes. A sociological perspective has to address these parallel poietic and autopoietic operations of the rule of law. It constitutes a societal order by creating its normativity and responding to the question of collective identity. At the same time, the rule of law limits its operations by differentiating from the rest of society and only responding to the specific functions of law and politics. Societal constitution of the rule of law thus goes hand in hand with functional differentiation of the system of positive law. Sociological

114  Research handbook on the sociology of law inquiries into the rule of law subsequently need to study the social context of law as much as the legal context of society. Mechanisms of social and political control through the rule of law are as important as society’s self-constituted order of non-legal rules and norms.

A SOCIOLOGICAL CRITIQUE OF THE RULE OF LAW DOCTRINE: ON SOCIAL TELOS AND VALUES IN LAW In the context of sociological criticisms of legal formalism and positivism, it is paradoxical that Jeremy Bentham’s famous definition of law as the sovereign’s command was intended to exactly treat law as a social and political phenomenon without further moral and transcendental qualifications of its validity. The strict separation of law and morality removes both the transcendental cloud of natural law and the immanent burden of moral traditions and conventions from the system of positive law. Bentham’s definition is inadequate, but its simplicity still remains tempting to the adherents and critics of legal positivism and utilitarianism alike. It separates the legal method from morality and considers rational formalism of positive law the most powerful protection against the arbitrary use of political power. According to this legal positivist tradition and its appropriation by political theory of democracy, the modern democratic rule of law means that the people as the political sovereign is governing itself through the medium of legality (Maus 2018). According to the legal and political positivist view, the rule of law’s societal value depends on its technical capacity to limit political power. Philosophers and theorists of law and politics treat the rule of law as ‘an institutional ideal’ (Palombella 2010) and contrast it to the arbitrary exercise of power in the spirit of the classical distinctions between will and reason, pleasure and duty, egotism and responsibility, or randomness and predictability. Nevertheless, this formalist and positivist concept of the rule of law has been criticized by moral normativism of all kinds, claiming that law’s legitimacy depends on its conformity to the superior moral norms and principles. Furthermore, it has always been challenged by sociological positivism claiming that the law’s form is already predetermined by spontaneous forces of societal evolution. In the last three decades, the positivist canon of the rule of law has been challenged by some social theorists and sociologists of law, most notably Roger Cotterrell, Martin Krygier and Brian Tamanaha. Tamanaha mainly highlights the historical, theoretical and political context of the rule of law doctrine and particularly shows its social transformation from a political rhetoric to the societal practice and a universal good (Tamanaha 2004, 137). Unlike Tamanaha’s semi-detached conceptual and doctrinal analysis, Cotterrell, who points to the similarities between the English idea of the rule of law and the continental doctrine of Rechtstaat, engages in a sociologically critical analysis of Dicey’s rule of law doctrine, and adopts Franz Neumann’s historical study of societal transformations of the rule of law (1986), especially in the context of industrialization and the rise of corporate society (Cotterrell 1996, 452). He emphasizes the fact that the rule of law idea has both legal meaning and social importance and, furthermore, changes according to the changing social and economic conditions and experiences.

Sociology of the rule of law  115 Cotterrell’s sociological and political jurisprudence gradually evolved into a comprehensive sociology of the rule of law as a Durkheimian index of social solidarity which signifies the socially meaningful and politically legitimate legal regulation (Cotterrell 1989; 1995). According to this view: The Rule of Law is not an idea too vacuous to be taken seriously. Its seemingly unsatisfactory character derives partly from being considered merely as a set of institutional or procedural requirements divorced from a broader moral context. When the values of equality, individual autonomy and security implicit in it are given appropriate prominence, it ceases to appear as a limited requirement of procedural propriety and appears instead as an ambitious programme for responsible and responsive government. (Cotterrell 1996, 470)

Cotterrell treats the rule of law as a constitutive element of the ‘law’s community of values’ (1995; 2017). Critically drawing on this practical and moral dimension of the rule of law, Krygier criticizes failures and narrowness of analytical jurisprudence to promote the sociological teleology of the rule of law. His ‘teleology before anatomy’ approach (Krygier 2019, 111) is meant to move beyond typical analyses of legal principles, normative and institutional frameworks and lists of the rule of law conditions. Instead, Krygier promotes teleology and an analysis of societal goals immanent in the concept of the rule of law to arrive at a comprehensive sociology of the rule of law. According to him, Teleological accounts of an ideal like the rule of law begin by seeking to identify the predicament or circumstances thought to require attention and the value or end that any solution is hoped to serve, its point or telos, in relation to that predicament or those circumstances. (Krygier 2019, 112)

Krygier’s perspective is functionalist in the sense that it asks ‘what we might want the rule of law for’ (Krygier 2009, 46) and what needs to happen in society to achieve it. According to this view, legal institutions need to be analysed in the social context in which they function and against the background of cultural differences affecting the allegedly universal concept of the rule of law. Instead of normative idealism, Krygier promotes factual realism examining specific historical, social and cultural conditions and different ways in which particular societies adopt universal political and legal principles and use them to deal with their particular problems. The teleological analysis as a preliminary of any future sociology of the rule of law is, actually, close to the legal theoretical views of the rule of law. Fuller’s eight conditions of the rule of law defined as ‘the internal morality of law’ are not merely ‘anatomical’. The requirement of laws to be general, made public, non-retroactive, comprehensible, non-contradictory, possible to perform, relatively stable and officially enacted in ways congruent with declared rules (Fuller 1969, 46–91) is not formulated as a condition of just law. Rather, it makes laws socially operative and functional; that is, efficient in terms of the law’s ‘enterprise of subjecting human conduct to the governance of rules’ (Fuller 1969, 96). In fact, this general sociological functionalism already permeated the Hart-Fuller debate and informs more recent accounts of the rule of law’s ‘virtue’ (Raz 1979). Apart from institutional frameworks and general principles, the rule of law is expected to ‘perform’ its role and ‘produce results’ in society. The combination of entrepreneurial functionalism and virtue analysis is adopted by sociological methodologies which, rather

116  Research handbook on the sociology of law than a first principle, take the rule of law as a variable social achievement relative to cultural and social conditions of different polities. In this sense, the rule of law: . . . is in relatively good order insofar as the exercise of political, social, and economic power in a society is effectively tempered, constrained, and channelled to a significant extent by and in accordance with law, so that non-arbitrary exercises of such powers are relatively routine, while other sorts, such as lawless, capricious, and wilful exercises of power, routinely occur less. (Krygier 2019, 125–6)

THE RULE OF LAW AS A GENEALOGY OF POWER Understanding the rule of law as social practice and cultural value or tradition invites adopting the canonical socio-legal distinctions between law in books and law in action of living law (see Ehrlich [1936] 1975; Pound 1910; Přibáň 2017). Instead of merely focusing on the power limiting and tempering function of the rule of law, a sociological perspective needs to elaborate on the rule of law in action and analyze it as a complex craft of social organization. It also needs to accommodate the other side of the rule of law, namely the possibility to use legality as an instrument of governing power and its expansion. Sociology always has been studying networks of power relations and institutionalised forms of domination, including the rule of law and legal regulation. Durkheim’s concepts of social solidarity and collective consciousness [1933] (2014) and Weber’s typology of legitimacy (1968, 212–99) examine these institutions and relations in which members of society can enforce their will and materialize their individual and collective interests through different forms of legal regulation. Instead of treating power in the spirit of legal and moral philosophy as a political risk or danger that needs to be limited and tamed, sociology of law reformulates the concept of power and its legal form as a productive societal force (Přibáň 2018, 33). It is not just a one-sided structure of physical coercion which would require nothing but submission and obedience by those subjected to the power and the free will exercised by the powerful. Power requires the possibility of choice and selection of action on the side of the powerful as much as those subjected to their power. Niklas Luhmann formulated the socially expansive operation of power by stating that it ‘increases with freedom on both sides, and, for example, in any given society, in proportion to the alternatives that society creates’. (Luhmann 2017, 12). In this basic power structure, events can always go either according to, or against, the intent, expectation and will of both the powerful and their subjects. This contingency corresponds to the complexity of functionally differentiated modern society which is structurally impossible to explain by simple communication between the commanding sovereign and the obedient subjects. Luhmann states that this possibility of forming ‘complementary avoidance alternatives’ is ‘power in its raw state’ and shows that it has the structure of a binary code (2017, 145). This binary code of power/powerless is behind the basic operation of the political system, namely the enforcement of collectively binding decisions and steering the polity. It determines the system’s capacity to deliver policy goals. Power is not an ultimate goal of politics; it is its medium of communication. The modern political system monopolized power and initially concentrated it in the sovereign state. Through this process of monopolization, the system excluded all other

Sociology of the rule of law  117 societal forces and codes, such as the scientific truth, economic profit and religious faith, from the realm of politics. Political power, potestas, had to be distinguished from societal power, potentia, to formalize and institutionalize societal operations of modern politics (Přibáň 2018, 31). Societal power represents an externality of the political system which involves the risk of its permanent destabilization by non-political interventions into political operations. Power of scientific truth represents the risk of technocracy; power of economic profit represents the risk of plutocracy; power of religious faith represents the risk of theocracy and so on. Modern democratic political systems, therefore, had to respond to these risks by the monopolization of power by political institutions and exclusion of other, non-political forces from political operations. As Luhmann comments, ‘society’s political system takes over the creation, administration and control of power for society.’ (Luhmann 2017, 156). The function of power is to eliminate the destructive effects of societal forces and violence associated with them (Luhmann 2017, 161). The modern political system is thus self-constituted by its self-limitation and functional differentiation from other social systems. It has to distinguish between those forms of societal power which can be transformed into political power and other forms which must be excluded from politics as its externalities. The biggest political problem of modern society thus consists of keeping the vast majority of societal power outside politics and constituting the political limits of politicisation and depoliticisation of societal power (Tamanaha 2006). The political system differentiates between political and non-political power in order to protect the power code of the political system from degenerating into physical coercion and violence (Luhmann 2017, 170). This is complicated by the tendency of democratic societies to increasingly apply democratic procedures and values outside the political system. This societal expansion of democratic politics and democratisation of nonpolitical social operations represents a typically modern risk of political totalization of society. In modern, complex and democratically organised societies, the power/powerless coding, nevertheless, can also lead to excessive levels of contingency and, therefore, requires a secondary coding and normative framing of decision-making processes. Politically organised and publicly exercised power subsequently gets the secondary coding by the binary code of legality with the right/wrong distinction stabilising the performance of power operations. This sociological reformulation of the distinction between the rule of powerful persons and the rule of impersonal laws does not have the normative value and virtue praised by philosophers and sociologists of law alike. Instead, it shows that political power is insufficiently organised by the political system and needs to be further clarified and expanded by the impersonal code of legality and differentiation between lawful and unlawful power (King and Thornhill 2006). Political power thus permanently selects between matters to be governed and those to be left out from politics (Barker 1990, 20) and this selection is subsequently regulated by legal rules. Indeed, unlawful power is still power and its double coding of power/powerless and lawful/unlawful means that the two codes are different and ‘might’ does not equal ‘right’ and vice versa (Luhmann 2017, 173). However, it is exactly this secondary coding by legality that transforms power of the politically constituted system into the rule of constitutive law.

118  Research handbook on the sociology of law Now, legality can be used as both the limitation and expansion of power encoded in the general principle of the rule of law. The powerless can use legality for their empowerment (Teubner 2006, 327). The powerful, however, can enhance their power by formulating it in the very same code of legality and thus keep their subjects legally obliged to accept and follow their decisions. The modern political system paradoxically expands power by its legal limitation (Thornhill 2011, 181). The power of the powerful is strengthened by its legal justification, yet they lose to the powerless if these are in the right. The first principle of the rule of law, that nobody is exempt from it, is replaced by the sovereignty of the legal constitution incorporating the coding of right and wrong in the language of constitutional principles and rights (Přibáň 2018, 41).

THE RULE OF LAW AS A LEGITIMATION FORMULA Every power calls for legitimacy including modern political power, both limited by and expanding through the code of legality. What is then the rule of law’s telos? The legitimation of power. Max Weber’s ideal type of legitimation by legality represents modern rationality as a force of efficiency and purpose-oriented social action. His definition of the state as the monopoly of the legitimate use of violence within a given territory may be criticised, yet its conceptualisation of political power as the right to use coercive force within polity living on a specific territory (Weber 1968, 952–3) highlights the inseparability of legality and legitimacy of power. The rule of law means that the conditions of legitimacy are generated from within society, exclusively defined by legality, and cannot be formulated as its external foundations validated by God’s commandments, the Rousseauian transcendental will (volonté générale), the Aristotelian natural law and reason, the humanitarian universal values and so on. They depend on immanent structural coupling between the systems of positive law and politics. The elimination of societal violence by its monopolization in the political system is achieved by the transformation of effective power into the force of legal norms. Politically productive power is reproduced as the rule of law and political realism is reformulated as idealism of legality’s capacity to use its general, impartial and impersonal rules to protect personal autonomy, public order and international relations (Shklar 1964, 15–20). The secondary coding of power by legality is historically associated with the emergence of the sovereign constitutional state, but it is not limited to its organization and applies to any local, supranational and transnational political organization (Halliday and Shaffer 2015). After all, the state is just one possible form of organizing people ruling over other people (Weber 1968, 56). A sociology of the rule of law then needs to avoid the reductionist approaches to the problem of legitimacy by legality, typical of political sciences as much as the inflationary approaches speculating on the conditions of legitimacy and its deficiencies popular among critical theories and philosophies. Its job is to analyse the rule of law as a legitimation formula of modern politics without overburdening the concept of power and its deontological context.

Sociology of the rule of law  119 A sociological approach has to focus on the specific organizational subsystem connecting the systems of positive law and politics, and reformulate the classic distinction between might and right as two distinct questions typically associated with the modern problem of legitimacy, namely efficiency of power and its normative justification. The question of legitimacy of law is then a matter of efficiency of legal regulation as much as its normative justification, without which the sovereign state or any other power organization’s right to command and the civic duty to obey these commands could not operate in society. Modernity offers a number of examples of laws that can provide as an effective tool to dignify and legitimize the will of a tyrant pretending to be acting within the framework of legality. Law can become a repressive tool. Instead of the classical Aristotelian distinction between the rule of law and men, modern society thus presents us with the paradox of the arbitrary rule of men, legitimized by the legal rule (Přibáň 2019, 147). The political system’s legitimacy depends on its capacity to deliver policy goals, but the secondary coding of legality turns the problem of legitimacy by law into the problem of legitimacy of law and its rule. Shifting from the rule of law as a legitimation formula to the legitimacy of the rule of law itself, the above discussed different concepts of the rule of law that can be analyzed in the context of a sociology of constitutionalism and legal values, and constitutional, political and societal transitions (Carothers 2006). The formal and technical concept of the rule of law drawing on the distinction between arbitrary tyrannical rule and non-arbitrary power limited by law has its constitutional function as a general form of government ruling by laws. Considering this civilizing impact of legal formalism insufficient and prone to the power abuse, the substantive concept of the rule of law draws on the values of political democracy and human rights. Instead of the universal force of rationality in formal legality, the substantive rule of law represents a particular legitimation formula of constitutional democratic politics of rights and freedoms which is distinguished from the variety of non-democratic authoritarian government (Maravall and Przeworski 2003; Přibáň 2012, 105). The formalist concept of the rule of law is relatively applicable, even to the authoritarian and totalitarian regimes, because their systems of positive law provide for some elements of social predictability, certainty and stability. Indeed, every dictatorship has its system of positive law, but one hardly would call them the rule of law because they effectively constitute ‘a dual state’ (Fraenkel 1941) in which the ruling class is exempt from laws applicable to the rest of society. Recent political and legal theories studying post-totalitarian and post-authoritarian societies, therefore, introduced a concept of ‘the unlawful state’ (Unrechtsstaat) (Marxen and Werle 1999) to describe a system officially governed by laws, but factually enacting repressive, discriminatory and grossly unjust legal acts and judgements (Krygier and Czarnota 1999; Přibáň and Young 1999). The rule of law based on substantive democratic values is subsequently contrasted to the legal formalism (Přibáň 2007, 156). Legitimation by the rule of law is reformulated as the legal process of political liberalization and democratization. It is associated with the constitutional democratic state based on the protection of human rights protected by an independent judiciary. The rule of law is thus identified with the protection of these rights and principles of democratic government (Dyzenhaus 1998, 1999).

120  Research handbook on the sociology of law

THE RULE OF LAW AS SOCIETAL VALUE The conflict between formalist and substantive theories of the rule of law is just another formulation of the structural paradox of power legitimation in modern society. States and any other organizations of political power legitimised by legal rules are determined by specific historical and cultural values of different polities. At the same time, their legitimising values and foundations are expected to have universal validity (Přibáň 2019, 140–3). External moral values become the positive law’s internal sources of self-legitimation and jurisprudential matters ‘are at their core issues of moral principles’ (Dworkin 1977, 7). The formal rule of law is replaced by substantive social values. Legislation and adjudication using substantive arguments from supra-positive principles thus incorporate the vagueness of moral concepts and values into positive law (Maus 2018, 84) and, paradoxically, compromise the conceptual clarity and predictability associated with the formal concept of the rule of law and its legitimation capacity. Substantive moral principles and values have a dual function in the legal system. They constitute the category of ‘just law’, which selects between legitimate and illegitimate legal rules. At the same time, they protect morality from the legislated law by declaring the suprapositive status for themselves. According to Ingeborg Maus, moral principles adjudicated by top courts, paradoxically, weaken the limits of both the state and legal regulation because they appeal to the social and common good and thus de-differentiate democratic legitimation and moral foundations of law. The political consequence is the weakening social control by democratic deliberation and the strengthening power of state institutions and its élites claiming superior knowledge of moral principles as legitimation values (Maus 2018, 227–9). The general tendency of modern society to replace formal and general legal rules and reasoning by substantive social regulation and justification by specific interests and particular needs disguised as public morality undermines democracy as self-government of the people by the laws. Legitimation of the rule of law by substantive political values becomes a paradoxical source of its de-legitimation because the original telos of the rule of law exactly was to achieve political legitimacy by the basic separation of legal and moral judgements, reasoning and concepts. A sociology of the rule of law thus shows the contradiction between the general acceptance of the rule of law as the common good and universally acknowledged value, and the absence of general agreement on what the concept exactly means and which specific values are actually represented by it. This contradiction is further illuminated by the fact that the rule of law is not just a policy to be implemented, but is also a spontaneously evolving cultural practice and order impossible to politically control and legally enforce. It is relative to political cultures and histories, and the universally appraised value of the rule of law may significantly differ between particular political cultures. The political failure of the formal rule of law in modern political history resulted in its substantiating by the values of political democracy, human rights and social justice. This transformation of the rule of law into a morally substantive concept, nevertheless, replicates the initial tension between law and morality in modern society which led to the constitution of the rule of law as a legitimation formula of democratic politics. Instead of its de-paradoxification and functionalisation, the supra-positive principles of the rule of law merely replicate the original paradox of functionally differentiated modern society, which is impossible to be transcendentally legitimized.

Sociology of the rule of law  121

CONCLUDING REMARKS: TRANSFORMING POWER FACTS TO THE LEGITIMIZING VALUES The legitimation/de-legitimation loop between the formal and substantive concepts of the rule of law show a general societal function of the rule of law transforming the systemic facts of power into legitimizing values of the political system. This function is typical of the constitutional state as much as the variety of forms of transnational law and politics. In its telos of power legitimation by legality, the formal rule of law, initially expected to eliminate all moral values from the political domain, paradoxically constitutes itself as societal value because of its capacity to eliminate arbitrariness of the state or any other societal power emerging in the systems of economy, science, religion, and so on. Furthermore, the value of the rule of law is in the self-limitation of legality which prohibits the system of positive law to expand and juridify other social systems. In other words, it shows the limited capacity of legality to regulate the totality of social life. Substantive theories of the rule of law cannot deny the value and legitimizing potential of legal formalism. They, therefore, mainly seek to further qualify and normatively expand its conditions of legitimacy. Sociologically understanding the rule of law subsequently requires an analysis of the rule of law as a vehicle transforming societal values to the force of law and vice versa. Understanding the process of transvaluation of moral values by selecting them as supra-positive foundations of the legal system is an essential task of sociological inquiries to the rule of law. However, this job is no more essential than understanding how technical qualities of positive law, such as clarity, consistency, congruence, coherence, and non-contradiction, transform into societal values regulating the public life in particular and social reality in general. The rule of law is the first political principle opposing the arbitrary will of the stronger. Externalizing its internal functional qualities of generality, clarity, coherence and so on as societal values, the rule of law transforms itself into the ultimate legitimation formula of politics. It operates as an efficient tool legitimizing power and the primary public good experienced as cultural tradition and moral value itself. However, the rule of law cultural tradition and societal practice is not insulated from other values and traditions permeating its structures and operations. For the rule of law functionality, internalizing external societal values is as important as externalizing its internal technical qualities. Understanding these complex operations and transformations of efficient techniques to generally shared values, and vice versa, requires a general sociological analysis of the capacity of specific social systems to internalize and operationalize external values as the internal distinction between legitimacy and illegitimacies of the political and legal systems.

REFERENCES Barker, Rodney. 1990. Political Legitimacy and the State. Oxford: Oxford University Press. Bauman, Zygmunt. 1999. Culture as Praxis. New Edition. London: Sage Bobbio, Norberto. 1989. Democracy and Dictatorship. Cambridge: Polity Press. Carothers, Thomas (ed). 2006. Promoting the Rule of Law Abroad: In Search of Knowledge. Washington, DC: Carnegie Endowment for International Peace.

122  Research handbook on the sociology of law Costa, Pietro and Danilo Zolo (eds). 2007. The Rule of Law. History, Theory and Criticism. Dordrecht: Springer. Cotterrell, Roger. 1989. The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. Oxford: Oxford University Press. Cotterrell, Roger. 1995. Law’s Community: Legal Theory in Sociolegal Perspective. Oxford: Clarendon Press. Cotterrell, Roger. 1996. ‘The Rule of Law in Transition: Revisiting Franz Neumann’s Sociology of Legality’. Social and Legal Studies 5(4), 451–70. Cotterrell, Roger. 2017. Sociological Jurisprudence: Juristic Thought and Social Inquiry. London. Routledge. Dicey, Albert V. 1959. Introduction to the Study of the Law of the Constitution. 10th edition 1959 (first edition 1885). London: Macmillan. Durkheim, Emile. [1933] 2014. The Division of Labour in Society. New York: The Free Press. Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge, MA: Harvard University Press. Dyzenhaus David. 1998. Judging the Judges, Judging Ourselves. Oxford: Hart Dyzenhaus, David. (ed). 1999. Recrafting the Rule of Law: The Limits of Legal Order. Oxford: Hart Publishing. Ehrlich, Eugen. [1936] 1975. Fundamental Principles of the Sociology of Law. New York: Arno Press. Fraenkel Ernst. [1941] 2017. The Dual State: A Contribution to the Theory of Dictatorship. Oxford: Oxford University Press. Fuller, Lon L. 1969. The Morality of Law. Revised Edition. New Haven, CT: Yale University Press. Halliday, Terence C. and Gregory Shaffer. 2015. Transnational Legal Orders. Cambridge: Cambridge University Press. Hayek, Friedrich A. 1982. Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy. London: Routledge. Jellinek, Georg. 1900. Allgemeine Staatslehre. Berlin: Häring Verlag. Jensen, Erik Gilbert and Thomas C. Heller (eds). 2003. Beyond Common Knowledge: Empirical Approaches to the Rule of Law. Stanford, CA: Stanford University Press. King, Michael and Chris Thornhill (eds). Luhmann on Law and Politics: Critical Appraisals and Applications. Oxford: Hart Publishing. Kirchheimer, Otto. 1969. ‘The Rechtsstaat as Magic Wall’. In Otto Kirchheimer. Politics, Law, and Social Change: Selected Essays. New York: Columbia University Press, 428–52. Krygier, Martin. 2009. ‘The Rule of Law: Legality, Teleology, Sociology’. In Gianluigi Palombella and Neil Walker (eds). Re-locating the Rule of Law. Oxford: Hart Publishing, 45–69. Krygier, Martin. 2019. ‘The Rule of Law and State Legitimacy’. In Wojciech Sadurski, Michael Sevel and Kevin Walton (eds). Legitimacy: The State and Beyond. Oxford: Oxford University Press, 106–36. Krygier, Martin and Adam Czarnota (eds). 1999. The Rule of Law after Communism. Aldershot: Ashgate. Lévi-Strauss, Claude. 1969. The Elementary Structures of Kinship. Boston: Beacon Press. Luhmann, Niklas. 1995. Social Systems. Stanford, CA: Stanford University Press. Luhmann, Niklas. 2017. ‘Power’. In Niklas Luhmann. Trust and Power. Cambridge: Polity Press, 115–219. Maravall, José María and Adam Przeworski (eds). 2003. Democracy and the Rule of Law. Cambridge: Cambridge University Press. Marxen, Klaus and Gerhard Werle. 1999. Die Strafrechtliche Aufarbeitung von DDR-Unrecht: Eine Bilanz. Berlin: de Gruyter. Maus, Ingeborg. 2018. Justiz als gesellschaftliches Über-Ich. Frankfurt: Suhrkamp. Neumann, Franz L. 1986. The Rule of Law: Political Theory and the Legal System in Modern Society. Leamington Spa: Berg. Palombella, Gianluigi. 2010. ‘The Rule of Law as an Institutional Ideal’. In Gianluigi Palombella and Leonardo Morlino (eds). Rule of Law and Democracy: Internal and External Issues. Leiden: Brill. Pound, Roscoe. 1910. ‘Law in Books and Law in Action’. American Law Review 44, 12–36. Přibáň, Jiří. 2007. Legal Symbolism. On Law, Time and European Identity. Aldershot: Ashgate. Přibáň, Jiří. 2012. ‘Varieties of Transition from Authoritarianism to Democracy’. Annual Review of Law and Social Science 8, 105–21. Přibáň, Jiří. 2017. ‘A Sociology of Legal Distinctions: Introducing Contemporary Interpretations of Classic Socio-legal Concepts’. Journal of Law and Society 44(S1), 1–18. Přibáň, Jiří. 2018. ‘Constitutional Imaginaries and Legitimation: On Potentia, Potestas, and Auctoritas in Societal Constitutionalism’. Journal of Law and Society 45(S1), 30–51. Přibáň, Jiří. 2019. ‘The Nation State’s Legitimation in Post-National Society: A Social Systems Perspective of Values in Legality and Power’. In Wojciech Sadurski, Michael Sevel and Kevin Walton (eds). Legitimacy: The State and Beyond. Oxford: Oxford University Press, 137–57. Přibáň, Jiří and James Young (eds). 1999. The Rule of Law in Central Europe. Aldershot: Ashgate. Raz, Joseph. 1979. ‘The Rule of Law and Its Virtue’. In Joseph Raz. The Authority of Law. Oxford: Clarendon Press, 210–29. Rubin, Edward L. 2005. Beyond Camelot: Rethinking Politics and Law for the Modern State. Princeton: Princeton University Press.

Sociology of the rule of law  123 Runciman, David. 1997. Pluralism and the Personality of the State. Cambridge: Cambridge University Press. Sellers, Mortimer and Tadeusz Tomaszewski (eds). 2010. The Rule of Law in Comparative Perspective. Dordrecht: Springer. Shklar, Judith N. 1964. Legalism: Law, Morals, and Political Trials. Cambridge, MA: Harvard University Press. Shklar, Judith N. 1987. ‘Political Theory and the Rule of Law’. In Alan C. Hutchinson and P. Monahan (eds). The Rule of Law: Ideal or Ideology. Toronto: Carswell, 1–16. Smith, David Chan. 2014. Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616. Cambridge: Cambridge University Press. Tamanaha, Brian. 2004. On the Rule of Law: History, Politics, Theory. Cambridge: Cambridge University Press. Tamanaha, Brian. 2006. Law as a Means to an End: Threat to the Rule of Law. Cambridge: Cambridge University Press. Teubner, Gunther. 2006. ‘The Anonymous Matrix: Human Rights Violations by “Private” Transnational Actors’. Modern Law Review 69(3), 327–46. Thompson, Eward Palmer 1975. Whigs and Hunters: The Origin of the Black Act. London: Allen Lane. Thornhill, Chris. 2011. A Sociology of Constitutions: Constitutions and State Legitimacy in HistoricalSociological Perspective. Cambridge: Cambridge University Press. Unger, Roberto Mangabeira. 1976. Law in Modern Society: Toward a Criticism of Social Theory. New York: The Free Press. Weber, Max. 1968. Economy and Society, Vols 1 and 2. Berkeley, CA: University of California Press.

10. Sociology of the living law: exploring the other hemisphere of the legal world Marc Hertogh

The concept of ‘living law’ is one of the most influential and most controversial ideas in modern sociology of law. This notion – which refers to informal norms produced by non-state social associations – allows us to explore ‘the other hemisphere of the legal world’ (Galanter 1981, 20) and helps us to understand the limits of state regulation in, for example, immigrant groups, businesses and online communities. Yet at the same time it also raises important theoretical, methodological and normative questions about the concept of law and about the differences between social and legal norms. Although the term ‘living law’ has many different meanings and is also used by other scholars (Tamanaha 2011; Benda-Beckmann 2014), it is now mostly associated with the work of Eugen Ehrlich, one of the founders of sociology of law (see Hertogh 2009a). The career of the ‘living law’ concept in western sociology of law has paralleled the career of the state as lawmaker (Cotterrell 2015, 244).1 When the state was still seen as supremely strong, the idea of the ‘living law’ was mostly ignored. But when the regulatory capacities of the state are questioned (because of sobering implementation studies or the growing significance of globalization), the idea of ‘living law’ has become increasingly influential. The aim of this chapter is to analyze the idea of the ‘living law’ and to assess its relevance as a key concept for sociology of law.2 This chapter will first introduce the concept as it was developed in Ehrlich’s pioneering work (section 2). Next, it will be argued that these ideas have inspired at least three separate but interconnected fields of contemporary research. One of these fields focuses on ‘legal pluralism’ and looks at informal normative patterns in social associations that coexist with state law (section 3). However, these and many other studies also emphasize some of the theoretical and empirical shortcomings of Ehrlich’s original approach. In particular, the chapter will critically examine the jurisprudential, methodological and conceptual boundaries of ‘living law’ (section 4). The chapter will conclude with some suggestions for future research (section 5).

EUGEN EHRLICH ON LIVING LAW After Ehrlich first discussed the notion of ‘living law’ in a fairly obscure methodological paper (Ehrlich 1911), he introduced the concept for a wider audience in Fundamental Principles of the Sociology of Law – which was published in German in 1913 (Ehrlich 1913) and in English in 1936 (Ehrlich 1936).

1 2

  For the warm reception of Ehrlich’s work in Asia, see Vogl (2009); Benda-Beckmann (2009).   Parts of this chapter draw from and build on Hertogh (2008; 2012).

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Sociology of the living law  125 Ehrlich (1862–1922) was a professor of Roman law in the city of Czernowitz, in an area called the Bukowina, on the outskirts of the Austro-Hungarian Empire. In this part of Southeastern Europe, many different cultural groups lived side by side. Based on observation and through the empirical study of the habits and customs of these and other groups, Ehrlich developed his perspective on law. Ehrlich focuses on the rules of conduct that people in actual fact obey and concludes that most people do not follow the official Austrian law; rather, they live according to their own social norms. One of his many examples looks at the German peasantry. In the part of the Austrian code that deals with matrimonial agreements, there are only four sections that deal with the matrimonial regime of community of goods. Yet, Ehrlich claims, anyone who has had an opportunity of coming into contact with the German peasantry of Austria realizes that this is not representative for their situation: [They] live, almost exclusively, under a matrimonial regime of community goods. But this matrimonial community of goods, which is the prevailing, freely chosen property regime of the German peasantry in Austria, has nothing in common with the community of goods provided for in the Austrian Civil Code, and the provisions of the Civil Code are never being applied . . .’. (Ehrlich 1936, 489)

Ehrlich calls the German peasants, as well as other formal and informal groups, ‘social associations’. This is a plurality of human beings ‘who, in their relations with one another, recognize certain rules of conduct as binding, and, generally at least, actually regulate their conduct according to them’ (Ehrlich 1936, 39). According to Ehrlich, these organizational norms should be considered living law: ‘the law which dominates life itself even though it has not been posited in legal propositions’ (Ehrlich 1936, 493). Ehrlich distinguishes between ‘juristic law’ or ‘lawyers law’ (which he sees as ‘rules for decision’ meant for judges and lawyers, which are important as law in the administration of justice and ‘societal law’ or ‘living law’ (representing concrete ‘norms of behavior’ or the ‘inner order of social associations’)) (see Vogl 2009). To Ehrlich, the need for ‘norms for decision’ arises only in cases of dispute and conflict, whereas the ‘living law’ prevails under normal circumstances. Pound (1936, lxi), in his introduction to the English translation of Ehrlich’s book, argued that up to the nineteenth century the problem of the science of law was ‘to determine analytically or historically or philosophically . . . the nature of law, thought of as a single conception . . .’. Yet in the twentieth century, he continued, ‘the problems seem to be, first, not what law is, but what law does . . . ’. Similarly, Ehrlich’s analysis of the living law is primarily aimed at the sociological issue of what law does. Ehrlich takes issue with those lawyers who hold that only rules and regulations which are directly connected with (or recognized by) the state legislature or with state courts, can be considered ‘law’. Ehrlich strongly disagrees with this view, not on (normative) grounds of legal dogmatics, but because he feels this conception of law does not correspond with the practice of law as he sees it. In his book, Ehrlich discusses a number of historical examples, including the Roman household and the English medieval manor, in which legal activities are not directly connected with the state or a state court. From this he concludes: ‘The view that law is created by the state will not bear the test of historical analysis’ (Ehrlich 1936, 160) and therefore should be dismissed as ‘scientifically untenable’ (Ehrlich 1936, 163).

126  Research handbook on the sociology of law After Ehrlich had disconnected the law from the state, he continued by saying that the legal norm ‘has always been found in the company of other social norms’ (Ehrlich 1936, 164). Nevertheless, he argues, there is ‘an unmistakable difference between [the legal norm] and the non-legal norms.’ Since Ehrlich rejects the idea that all legal norms are connected with the state, he needs an alternative criterion which can be used to identify the legal norm. Ehrlich argues that the question as to the difference between the legal and the non-legal norm ‘is a question not of social science but of social psychology’ (Ehrlich 1936, 165). In his view, the emotional value attached to a norm contains important clues: ‘The various classes of norms release various overtones of feeling (Gefühlstöne), and we react to the transgression of different norms with different feelings’ (ibid). Whereas a violation of law leads to a feeling of revolt (Empörung), the violation of a law of morality leads to a feeling of indignation (Entrüstung). Moreover, an indecency corresponds with the feeling of disgust (Ärgernis), tactlessness with a feeling of disapproval (Mißbilligung), an offense against etiquette with ridiculousness (Lächerlichkeit) and, lastly, those who do not follow the same fashion cause a critical feeling of superiority (kritischen Ablehnung) among true fashion followers. Ehrlich claims that these differences will also be helpful in identifying the legal norm: ‘Peculiar to the legal norm is the reaction for which the jurists of the Continental common law have coined the term opinio necessitatis. This is the characteristic feature which enables one to identify the legal norm.’ (ibid). Ehrlich does not explain this term, but others have explained it as ‘the feeling or instinct of obeying a social necessity’ (Cotterrell 2009, 90). In Ehrlich’s view, the legal norm regulates a matter ‘which, at least in the opinion of the group within which it has its origin, is of great importance, of basic significance’ (Ehrlich 1936, 167). Based on these ideas, Ehrlich developed a unique research project aimed at studying the living law of the peoples of the Bukowina. To study the legal consciousness of these people, Ehrlich wanted his project to register those ideas and personal histories that were typical for their own ideas of law (Rechtsauffassung der Leute). To Ehrlich, the living law is a notion (Gedankengebilde) that lives in people’s heads, which can be identified on the basis of people’s attitudes and behaviour. His methodological approach can be described as follows: Ehrlich did not take the Austrian civil law book as the basis for his questions (i.e. by submitting legal rules and asking whether they were known to or not, a method ‘modern’ sociology of law very often does not hesitate to use) but on the contrary very sociologically makes the household and how it organizes its social relations by norms the research unit of his studies. (Ziegert 1979, 238)

CONTEMPORARY STUDIES ON LIVING LAW Although Ehrlich is considered by many as one of the founders of modern sociology of law, his work has been less influential than that of some of his contemporaries (such as Marx, Weber and Durkheim) and ‘many, if not most, sociologists of law today would be hard pressed if asked how their work was related to Ehrlich’s foundation of the sociology of law’ (Ziegert 2002, xix). However, ‘Ehrlich is best known – in many circles, probably only known – for popularizing the concept of the living law’ and ‘thanks to this catchy

Sociology of the living law  127 label and the idea it represents, Ehrlich’s name is still mentioned in sociolegal circles’ (Tamanaha 2011, 297). The definition of ‘living law’ is usually taken from Ehrlich’s statement that: The living law is the law which dominates life itself even though it has not been posited in legal propositions. The source of our knowledge of this law is, first, the modern legal document; secondly, direct observation of life, of commerce, of customs and usages and of all associations, not only those that the law has recognized but also of those it has overlooked and passed by, indeed even of those it has disapproved. (Ehrlich 1936, 493)

This broad definition has inspired a large body of literature in sociology of law. As Nelken (2008) has demonstrated, contemporary scholars have focused on three different (but overlapping) aspects of living law that have each, more or less, crystallized into a separate field of study. While some scholars loosely follow Ehrlich’s example to study (a) the ‘law beyond the law’ or to analyze (b) ‘order without law’ in social associations, others follow Ehrlich’s lead more directly and focus on studying (c) the ‘law without the state’. The first type of living law research (law beyond the law) underscores the opening sentence of Ehrlich’s definition and looks at law beyond the law books and formal legal codes. This literature aims to take into account ‘both the role of society in generating state law and judicial sentences, and the way it shapes laws and decisions as they seek to influence social life’ (Nelken 2008, 447). In a way, this applies to most of the sociolegal literature since the 1960s, with its central focus on studying the ‘law in context’. It’s nearly impossible to trace the exact influence of Ehrlich’s insights here, because they are now ‘woven into the warp and woof of sociology of law’ (ibid). For example, it may well be argued (as Nelken does) that Ehrlich’s central claim – that ‘the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself’ (Ehrlich 1936, Foreword) – is the leitmotiv in many of the contributions of Lawrence Friedman. Moreover, Ehrlich’s insight that the use of law is (also) shaped by non-legal factors is reflected in the works by Vilhelm Aubert (1967), Stewart Macaulay (1963), Marc Galanter (1974) and many other modern classics of sociology of law. The second type of living law research (order without law) shares Ehrlich’s interest in the inner working of social associations and looks at how (formal or informal) social norms give rise to the working orders of these associations. A good illustration of this type of research is Ellickson’s (1991) influential study of how ranchers in Shasta County resolve disputes arising from trespass by livestock. Rather than resorting to formal law and official legal procedures, the study shows how neighboring ranchers create and maintain their own norms (‘live and let live’) to solve their problems and maintain order in this community. Likewise, Macaulay (1963) found in his study that businessmen did not follow formal contracts, but relied on shared norms like ‘keeping one’s promises’ and ‘standing behind your product’ instead. Other similar studies include Reisman’s (1999) Law in Brief Encounters (which focuses on the importance of informal ‘microlaw’ in everyday encounters) and Feldman’s (2006) account of how the rulings of the (formal) ‘tuna court’ maintain a local normative order in the Tokyo fish market. The third type of living law research (law without the state) focuses on how social fields can create and enforce their own sets of norms (and emphasizes the coexistence of plural legal regimes). In this literature, Ehrlich is often considered one of the (unintended) intellectual forerunners of legal pluralism (see, for example, Benda-Beckmann 2002; Röhl

128  Research handbook on the sociology of law and Machura 2013; Melissaris and Croce 2017). Griffiths (1986, 26) for example, in his seminal paper What is Legal Pluralism?, argues that ‘[m]any of the essential elements of a descriptive theory of legal pluralism are to be found in Ehrlich’s idea of “living law”’.3 In addition to more traditional studies of different ethnic communities, there are also traces of Ehrlich’s work in more recent studies on the development of lex mercatoria, internet law and other examples of ‘global legal pluralism’ (see, for example, Teubner 1997; Schiff Berman 2009; Cotterrell 2015).4 This type of research looks at ‘law without the state’ in two different kinds of social fields: (i) the diverse laws of immigrant groups and religious, ethnic and cultural minorities; and (ii) the unofficial forms of ordering located in social networks or institutions. Some examples of both strands of research will be discussed below. However, not all of these studies use the term ‘living law’, but they refer to other related terms like ‘non-state law’, ‘customary law’, ‘unofficial law’, ‘folk law’, or ‘indigenous law’ (see Hertogh 2008). A good example of a study which looks at living law among immigrant groups and cultural minorities is an anthropological study of the ‘internal law’ or ‘folk law’ of the Moluccan (Indonesian) community in the Netherlands (Strijbosch 1985). This group consists of ex-soldiers of the Dutch colonial army, who moved to the Netherlands in the aftermath of the decolonization of Indonesia in 1951, and their families and offspring. Many of them live in distinct neighborhoods of Dutch towns and villages. This particular study focuses on the role of ‘pela’ in one such community; an institutional bond of friendship or brotherhood between all native residents of two or more villages. More specifically, it studies an important element of ‘pela’ according to which persons mutually engaged in the same alliance are not allowed to intermarry. The study gives a detailed account of the ‘indigenous legal system’ in this Moluccan community. Using observations, case studies and interviews it demonstrates that within the Moluccan community in the Netherlands, there is a tendency to interpret the pela intermarriage taboo in a strict, ‘traditional’ way. Moreover, these rules are enforced by a variety of social sanctions, ranging from pressure and persuasion to permanent exclusion from the Moluccan community. Similar studies have been conducted in many different communities. McConnachie’s (2014) study shows, for example, how a refugee camp on the Thailand-Burma border has developed its own system of informal dispute resolution, based on shared social norms of ‘camp justice’ (with a great emphasis on ‘harmony’ and ‘social order’). Similarly, Young (2014) has studied a group of cockfighters in rural Hawaii to analyze how they relate to law and create their own beliefs about order and legitimacy. Her ethnographic study shows how the ‘House’ (the group of men that organize the fights) institutes rules and enforces norms designed not only to help fights run smoothly, but to minimize the disturbing effects of law enforcement. These and other House rules are seen as ‘a type of law’ that co-exists with Hawaii state law. Other empirical studies in sociology of law have looked at ‘law without the state’ in social networks or institutions. A good example is Macaulay’s (1963) work. As indicated before, he studied business practices in Wisconsin and he found that a significant amount of business exchanges are done on a non-contractual basis. First, business agreements

3 4

  For a critique of Griffiths’ (1986) interpretation of Ehrlich’s work, see Ziegert (2014).   For a critique of Teubner’s (1997) interpretation of Ehrlich’s work, see Nelken (2007).

Sociology of the living law  129 are frequently made without knowledge of the relevant rules of contract law. Moreover, disputes are frequently settled without reference to the contract or potential legal sanctions and law suits for breach of contract are rare. Macaulay argues that the key in understanding this practice is the long-standing relationship between businessmen. In most cases, a detailed contract is not needed because its functions are served by other devices. According to Macaulay, ‘customs of their industry’ are such that both parties will exercise care to see both understand the primary obligation on each side. Moreover, in disputes businessmen can fall back on many non-legal sanctions. Two norms are widely accepted within the business community: commitments are to be honored in all situations and one ought to produce a good product and stand behind it. The study shows that the business community in Wisconsin is built on an elaborate system of exchange relationships and, for instance, salesmen and purchasing agents take each other out for dinner and exchange Christmas gifts. Anyone who does not follow the local norms and rules of the business community runs the risk of being excluded from future business deals. In his later work, Macaulay (1986) generalizes these findings about a kind of living law in the business community to other social sectors as well. He refers to this as ‘private government’: If governing involves making rules, interpreting them, applying them to specific cases, and sanctioning violations, some of all of this is done by such different clusters of people as the Mafia, the National Collegiate Athletic Association, the American Arbitration Association, those who run large shopping centers, neighborhood associations, and even the regulars at Smokey’s tavern. (Macaulay 1986, 445)

This approach is similar to Sally Falk Moore’s (1973) analysis of ‘semi-autonomous social fields’. In her view, it is well established that between the body politic and the individual, there are various smaller, organized social fields. ‘These social fields have their own customs and rules and the means of coercing or inducing compliance. They have what Weber called “legal order”’ (Moore 1973, 721). Moore builds her argument on the findings of her fieldwork among the Chagga people of Mount Kilimanjaro (Tanzania) and a case study of the dress industry in New York City. The work in the fashion industry is subject to detailed contracts, which are closely monitored by a union representative. However, business is such that it would be impossible to make a profit unless the precise terms of these contracts are regularly broken. As a result, in busy times workers put in many more hours of work than union contracts permit. And in quieter times workers must be paid even when they are in fact not working. According to a set of ‘binding rules and customs’ (Moore 1973, 728) generated in this social field, the union representative accepts these breaches of contract and, in return for his ‘reasonableness’, he receives various favors and gifts from the contractor (like an expensive dress for his wife). There is also a considerable body of literature on what some scholars describe as the ‘new’ lex mercatoria. The ‘old’ lex mercatoria refers to mercantile custom or non-national law of international commerce in the Middle Ages, created not by the authority of states but rather by and within international commerce itself. This non-state law was recognized not only in several treaties but also in decisions by judges of the state (Michaels 2006). Starting in the 1980s and 1990s, several scholars claim that we are now witnessing a similar development of a new, transnational, non-state law: ‘The idea is that the transnational [lawyers and businesses] of today have their own customs, norms, and practices, and a

130  Research handbook on the sociology of law sort of merchant law is emerging, without benefit of legislation, form their patterns of behavior’ (Friedman 2001, 356). Like the old lex mercatoria, the new version is said to be ‘an autonomous non-state legal order with special rules and special adjudicating bodies’ (Michaels 2005, 1219). A special element of this new type of living law is associated with the internet. According to Johnson and Post (1996, 1389): ‘Cyberspace is anything but anarchic; its distinct rule sets are becoming more robust every day.’ These and other authors consider cyberspace as a ‘self-governance system’ with its own set of ‘rules and customs’ and its own means of enforcement, disconnected from national states. It is argued that, for example, the current domain name system evolved from decisions made by engineers and the practices of internet service providers. Similarly, widespread agreement is said to exist about core principles of ‘netiquette’ in mailing lists and discussion groups. Rowland (1998) has linked these and other examples of the emergence of (informal) legal rules in cyber communities to Ehrlich’s analysis of ‘living law’.

CRITICAL REFLECTIONS ON LIVING LAW Ehrlich’s ‘polemical’ (Machura et al. 2014, 2) and ‘constructively subversive’ (Cotterrell 2015, 243) writings on the concept of the ‘living law’ were not only an inspiration for innovative empirical research, they also provoked a wave of criticism. In particular, legal theorists have accused Ehrlich of practising a ‘megalomanic jurisprudence’ (Allen 1964, 32) and other scholars have criticized the virtually unlimited character of the ‘living law’. As a result, the discussion about Ehrlich’s ideas focuses on the (lack of clear) jurisprudential, methodological and conceptual boundaries in his work. The most controversial element of Ehrlich’s work is his use of the phrase living ‘law’ to describe the informal norms and rules of social associations. Based on his ambition to link sociology and jurisprudence, Ehrlich gives his own (descriptive) interpretation of the term ‘law’, which is not always understood by his critics. While some commentators have criticised the ‘unlucky interdisciplinarity’ of his work (Ziegert 2002, xxxii), and Kelsen (1915/2003) has famously accused him of confusing Sein (Is) and Sollen (Ought), Ehrlich himself has repeatedly made it clear that he wanted to apply a strict distinction between descriptive and normative analysis. Ehrlich aimed to link sociology and jurisprudence ‘in a methodologically sensitive way’ (Vogl 2009, 97) by distributing different tasks to the two disciplines. Opposing the closed system of legal reasoning and Begriffsjurisprudenz of his time, he wanted to develop a ‘free science of law,’ which he conceived as a ‘sociological’ science without normative-practical relevance: ‘The name sociology of law is an expression of the fact that it is a pure science of law, excluding any practical application either in jurisprudence or in legal policy.’ (Ehrlich 1986 [1922], 179). He made it very clear that the normative content of law as such was not a problem for the sociology of law: ‘[T]he question itself how law should be, goes beyond the reach of sociology, because this can neither be described nor proved by scientific methods’ (ibid, 180). His sociological perspective on law was to provide a ‘conceptual framework enabling jurisprudence to deal with reality on a scientifically established factual basis’ (Vogl 2009, 122), but not to interfere on a dogmatic level with jurisprudence’s evaluative task of balancing interests. Similarly, Ehrlich (1936, 202) feels that it is the function of (socio-) legal studies ‘to record

Sociology of the living law  131 the trends of justice that are found in society, and to ascertain what they are, whence they come, and whither they lead’. But, in his view, it cannot possibly determine which of these is the only just one: Science can be concerned only with those things that are susceptible of scientific demonstration. That a certain thing is just is no more scientifically demonstrable than is the beauty of a Gothic cathedral or of a Beethoven symphony to a person who is insensible to it. (Ehrlich 1936, 202)

This approach is also reflected in Ehrlich’s use of the term ‘law’ in his discussion of the ‘living law’. A historian, Ehrlich argues, conceives of ‘law’ as a rule of human conduct; he states the rules according to which, in antiquity or in the Middle Ages, marriages were entered into or husband and wife lived together. Similarly, a ‘traveler returning from foreign lands’ will tell about marriage customs or family life. Yet, according to Ehrlich (1936, 22), he will have little to say about ‘the rules according to which law-suits are being decided’. This is what he refers to as the norms for decision; ‘that which is of importance as law in the administration of justice’ (Ehrlich 1936, 10). It is essential to recognize the ‘ontological divide’ (Tamanaha 1993, 206) between both categories. The rules of conduct refer to ‘concrete patterns of social ordering’ (Galanter 1981, 14). They refer to ‘what people [in a social group] actually do, accompanied by a felt sense of obligation’ (Tamanaha 1993, 215, n. 71). So, in this sense, they are much closer to conduct than to rules. By contrast, the norms for decision refer to those rules that are identified and applied by state or non-state ‘legal’ institutions, which are used to justify their decisions. For Ehrlich, the notion of the ‘living law’ refers to (descriptive) rules of conduct, but these should not be treated as (normative) norms for decision. Scholars have also criticized Ehrlich’s work from a methodological point of view: how do you identify the ‘living law’ (see Hertogh 2009b)? As discussed before, Ehrlich himself suggested that the difference between the legal and the non-legal norm is a question not of social science but of social psychology. However, since Ehrlich first published his ideas on opinio necessitatis, these were not taken very seriously. The mocking reaction of Kelsen (1915/2003) is indicative of most commentaries in Ehrlich’s time: ‘Among the many attempts to determine the essence of law this one is certainly the most curious.’ Likewise Rehbinder (1967, 39), who is an expert on Ehrlich’s work and who usually writes very favorably of him, considers the opinio necessitatis discussion the most problematic element of Ehrlich’s work. Recent commentators share this critique. Nelken (1984, 163), for instance, calls Ehrlich’s emphasis on various overtones of feelings a ‘not altogether happy solution’ and according to Tamanaha (1995, 505), Ehrlich’s test is ‘difficult to apply and incapable of providing a reliable distinction between legal and non-legal norms.’ Underlying these and other critical reactions by jurisprudential scholars is the ‘dogmatization’ of the living law; that is, the wrong assumption that Ehrlich’s opinio necessitatis approach should be interpreted as a fundamental, normative, principle in reaction to the jurisprudential focus on ‘What law is’ (see Vogl 2009, 99). Focusing on people’s emotions is, however, not very helpful in answering this question, these critics argue. Moreover, how should a judge ever decide a case on the basis of this criterion? ‘Needless to say this vague standard does not provide a clear or consistent way to identify which of the norms . . . count as law and which do not’ (Tamanaha 1995, 14). However, it is an unfortunate (but still very popular) misunderstanding that a central feature of Ehrlich’s work is the idea that, ultimately, sociology of law should replace jurisprudence on a dogmatic-normative

132  Research handbook on the sociology of law level. Similarly, Ehrlich’s focus on people’s emotions was not meant to be a doctrine of law serving the judge on a dogmatic level (and focusing on ‘what law is’), but rather a theory about law for a social scientist on a sociological level (focusing on ‘what law does’) (Vogl 2009, 100). Despite the strong criticism by (normative) legal theorists, there is a remarkable continuity between Ehrlich’s original opinio necessitatis discussion and contemporary (empirical) socio-legal research. There is, for example, an interesting connection between Ehrlich’s emphasis on people’s personal feelings and emotions and the growing ‘procedural justice’ literature, which strongly relies on social psychology (see, for example, Tyler 1990). Also, Ehrlich’s suggestion that people’s feelings and emotions are an important indicator of the social significance of law and legal institutions has found strong empirical support in recent legal consciousness research (see, for example, Hertogh 2004, 2018; Chua and Engel 2019). Finally, scholars have critically discussed the (rather vague) conceptual boundaries of living law. One year before Eugen Ehrlich first introduced his notion of ‘living law’ (Ehrlich 1911), Roscoe Pound published his article Law in Books and Law in Action (Pound 1910). Ehrlich (1862–1922) and Pound (1870–1964) were near contemporaries and both men have a lot in common (see Likhovski 2003). Moreover, Pound played an important role in the introduction of Ehrlich’s ideas to a wider audience. He invited Ehrlich to publish in the Harvard Law Review (Ehrlich 1922) and he wrote the introduction to the English translation of Ehrlich’s book (Pound 1936). It is, therefore, perhaps understandable that some commentators argue that Pound’s ‘law in action’ and Ehrlich’s ‘living law’ are nearly identical. Ziegert (1979, 233) claims, for instance, that: ‘[the] famous distinction of “law in books” versus “law in action” is very much Ehrlich’s pair of opposites “Rechtssatz” (legal proposition) versus “Rechtsleben” (legal life) . . .’ At closer inspection, however, this turns out to be a ‘false equation’ (Nelken 1984). The most significant difference between Pound’s and Ehrlich’s views on law and society is their central focus on two different objects. Whereas Pound focused on the behaviour of legislators, judges, jurists and other legal officials, Ehrlich was oriented towards the behaviour of people in social associations (inside and outside legal institutions). The ‘law in books’ refers solely to (official) rules and norms. In this way, it can be distinguished from the ‘law in action’; the implementation of these rules and norms in practice. ‘Norms for decision’, on the other hand, include not only rules and norms but also the actual patterns of decisions by legislative and judicial bodies. Conversely, ‘living law’ is not identical to ‘law in action’ because it refers essentially to obligatory norms rather than action. Ehrlich’s ‘norms for decision’ therefore encompass most of what Pound meant by both the ‘law in books’ and the ‘law in action’. But Ehrlich’s notion of ‘living law’ has no parallel in Pound’s distinction.

CONCLUSION: THE FUTURE OF LIVING LAW Writing in the early twentieth century, Ehrlich (1936, 164) argued that ‘by confining the attention of the investigator to the state’, this concept of law ‘has condemned the science of law to the poverty under which it has been suffering most terribly down to the present day.’ He therefore called for a ‘liberation from these shackles and a study of the legal

Sociology of the living law  133 norm not only in its connection with the state but also in its social connection’ (ibid). In the past decades, Ehrlich’s idea of the ‘living law’ has made a major contribution to the development of modern sociology of law. It has inspired many important empirical studies that look at informal normative patterns in, for example, immigrant groups, businesses and online communities, and it has contributed to our understanding of legal pluralism. The ‘living law’ is, however, not without problems. Scholars have highlighted important conceptual and methodological weaknesses in Ehrlich’s approach and they have criticized the virtually unlimited character of the concept. Law and society in the future will be characterized by increasing globalization and a diminishing role of the national state (see, for example, De Sousa Santos and Rodríguez-Garavito 2005; Schiff Berman 2012). In this rapidly changing ‘Global Bukowina’ of the twenty-first century, Ehrlich’s plea for a decoupling of law from the state has lost little of its relevance and a ‘liberation from these shackles’ – through the further development of the idea of the ‘living law’ – seems more appropriate than ever.

REFERENCES Allen, Carleton K. 1964. Law in the Making. Oxford: Oxford University Press. Aubert, Vilhelm. 1967. ‘Some Social Functions of Legislation’. Acta Sociologica 10(1–2), 97–120. Benda-Beckmann, Franz von. 2002. ‘Who’s Afraid of Legal Pluralism?’ Journal of Legal Pluralism and Unofficial Law 34(47), 37–82. Benda-Beckmann, Frans and Keebet von. 2009. ‘The Social Life of Living Law in Indonesia’. In Marc Hertogh (ed). Living Law: Reconsidering Eugen Ehrlich. Oxford and Portland Oregon: Hart Publishing, 177–97. Benda-Beckmann, Franz and Keebet von. 2014. ‘“Living Law” as a Political and Analytical Concept’. In Knut Papendorf, Stefan Machura and Annechua Hellum (eds). Eugen Ehrlich’s Sociology of Law. Zürich: Lit Verlag, 69–91. Chua, Lynette J. and David M. Engel. 2019. ‘Legal Consciousness Reconsidered’. Annual Review of Law and Social Science 15, 335–53. Cotterrell, Roger. 2009. ‘Ehrlich at the Edge of Empire: Centres and Peripheries in Legal Studies’. In Marc Hertogh (ed). Living Law: Reconsidering Eugen Ehrlich. Oxford and Portland Oregon: Hart Publishing, 75–94. Cotterrell, Roger. 2015. ‘From Living Law to Global Legal Pluralism: Rethinking Traditions from a Century of Western Sociology of Law’. Kobe University Law Review 49, 242–56. Ehrlich, Eugen. 1911. ‘Die Erforschung des lebenden Rechts’. Schmollers Jahrbuch für Gezetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich 35, 129–47. Ehrlich, Eugen. 1913. Gundlegung der Soziologie des Rechts. Berlin: Duncker & Humblot. Ehrlich, Eugen. 1922. ‘The Sociology of Law’. Harvard Law Review 36, 130–45. Ehrlich, Eugen. 1936. Fundamental Principles of the Sociology of Law. Cambridge, MA: Harvard University Press. Ehrlich, Eugen. 1986 [1922]. ‘Soziologie des Rechts’. In Manfred Rehbinder (ed). Eugen Ehrlich, Gesetz und lebendes Recht: Vermischte kleinere Schriften. Berlin: Duncker & Humblot, 179–94. Ellickson, Robert. 1991. Order without Law: How Neighbours Settle Disputes. Cambridge, MA: Harvard University Press. Feldman, Eric. 2006. ‘The Tuna Court: Law and Norms in the World’s Premier Fish Market’. California Law Review 94(2), 313–70. Friedman, Laurence M. 2001. ‘Erewhon: The Coming Global Legal Order’. Stanford Journal of International Law (37)2, 347–64. Galanter, Marc. 1974. ‘Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change’. Law & Society Review 9(1), 95–160. Galanter, Marc. 1981. ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’. Journal of Legal Pluralism and Unofficial Law 13(19), 1–47. Griffiths, John. 1986. ‘What is Legal Pluralism?’ Journal of Legal Pluralism and Unofficial Law 24, 1–56. Hertogh, Marc. 2004. ‘A “European” Conception of Legal Consciousness: Rediscovering Eugen Ehrlich’. Journal of Law and Society 31(4), 457–81.

134  Research handbook on the sociology of law Hertogh, Marc. 2008. ‘What is Non-State Law? Mapping the Other Hemisphere of the Legal World’. In Hanneke van Schooten and Jonathan Verschuuren (eds). International Governance and Law: State Regulation and Non-State Law. Cheltenham: Edward Elgar Publishing, 11–30. Hertogh, Marc (ed). 2009a. Living Law: Reconsidering Eugen Ehrlich. Oxford and Portland Oregon: Hart Publishing. Hertogh, Marc. 2009b. ‘From “Men of Files” to “Men of the Senses”: A Brief Characterisation of Eugen Ehrlich’s Sociology of Law’. In Marc Hertogh (ed). Living Law: Reconsidering Eugen Ehrlich. Oxford and Portland Oregon: Hart Publishing, 1–17. Hertogh, Marc. 2012. ‘Rescuing Living Law from Jurisprudence’. Jurisprudence 3(1), 135–52. Hertogh, Marc. 2018. Nobody’s Law: Legal Consciousness and Legal Alienation in Everyday Life. London: Palgrave Macmillan. Johnson, David R. and David Post. 1996. ‘Law and Borders: The Rise of Law in Cyberspace’. Stanford Law Review (48)5, 1367–1402. Kelsen, Hans. 2003[1915]. ‘Eine Grundlegung der Rechtssoziologie’. In Hans Kelsen and Eugen Ehrlich. Rechtssoziologie und Rechtswissenschaft. Eine Kontroverse (1915/1917). Baden-Baden: Nomos Verlagsgesellschaft. Likhovski, Assaf. 2003. ‘Czernowitz, Lincoln, Jerusalem, and the Comparative History of American Jurisprudence’. Theoretical Inquiries in Law 4(2), 621–58. Macaulay, Stewart. 1963. ‘Non-Contractual Relations in Business: A Preliminary Study’. American Sociological Review 28(1), 55–67. Macaulay, Stewart. 1986. ‘Private Government’. In Leon Lipson and Stanton Wheeler (eds). Law and the Social Sciences. New York: Russell Sage Foundation, 445–518. Machura, Stefan, Anne Hellum and Knut Papendorf. 2014. ‘Introduction’. In Knut Papendorf, Stefan Machura and Anne Hellum (eds). Eugen Ehrlich’s Sociology of Law. Zürich: Lit Verlag, 1–14. McConnachie, Kirsten. 2014. Governing Refugees: Justice, Order and Legal Pluralism. Abingdon/New York: Routledge. Melissaris, Emmanuel and Croce, Mariano. 2017. ‘A Pluralism of Legal Pluralisms’. Oxford Handbooks Online. Available from: https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199935352.001.0001/ oxfordhb-9780199935352-e-22 Michaels, Ralph. 2006. ‘The Re-Statement of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism’. Wayne Law Review 53, 1209–59. Moore, Sally Falk. 1973. ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’. Law & Society Review 7(4), 719–46. Nelken, David. 1984. ‘Law in Action or Living Law? Back to the Beginning in Sociology of Law’. Legal Studies, 4(2), 157–74. Nelken, David. 2007. ‘An Email from Global Bukowina’. International Journal of Law in Context 3(3), 189–202. Nelken, David. 2008. ‘Eugen Ehrlich, Living Law, and Plural Legalities’. Theoretical Inquiries in Law 9(2), 443–72. Pound, Roscoe. 1910. ‘Law in Books and Law in Action’. American Law Review 44(1), 12–36. Pound, Roscoe. 1922. ‘An Appreciation of Eugen Ehrlich’. Harvard Law Review 36(2), 129–45. Pound, Roscoe. 1936. ‘Introduction’. In Eugen Ehrlich. Fundamental Principles of the Sociology of Law. Cambridge, MA: Harvard University Press, lxi. Rehbinder, Manfred. 1967. Die Begründung der Rechtssoziologie durch Eugen Ehrlich. Berlin: Duncker & Humblot. Reisman, Michael W. 1999. Law in Brief Encounters. New Haven: Yale University Press. Röhl, Klaus, F. and Stefan Machura. 2013. ‘100 Jahre Rechtssoziologie: Eugen Ehrlichs Rechtspluralismus Heute’. Juristen Zeitung 68(23), 1117–68. Rowland, D. 1998. ‘Cyberspace – A Contemporary Utopia?’ The Journal of Information, Law and Technology (JILT). Available from: https://warwick.ac.uk/fac/soc/law/elj/jilt/1998_3/rowland/ Santos, Boaventura de Sousa and Cesar A. Rodríguez-Garavito. (eds). 2005. Law and Globalization from Below: Towards a Cosmopolitan Legality. Cambridge: Cambridge University Press. Schiff Berman, Paul. 2009. ‘The New Legal Pluralism’. Annual Review of Law and Social Science 5, 225–42. Schiff Berman, Paul. 2012. Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. Cambridge: Cambridge University Press. Strijbosch, Fons. 1985. ‘The Concept of Pela and its Social Significance in the Community of Moluccan Immigrants in the Netherlands’. Journal of Legal Pluralism and Unofficial Law 17(23), 177–208. Tamanaha, Brian. 1993. ‘The Folly of the “Social Scientific” Concept of Legal Pluralism’. Journal of Law and Society, 20(2), 192–217. Tamanaha, Brian. 1995. ‘An Analytical Map of Social Scientific Approaches to the Concept of Law’. Oxford Journal of Legal Studies 15(4), 501–35.

Sociology of the living law  135 Tamanaha, Brian. 2011. ‘A Vision of Socio-Legal Change: Rescuing Ehrlich from “Living Law”’. Law & Social Inquiry 36(1), 297–318. Teubner, Gunther. 1997. ‘Global Bukowina: Legal Pluralism in the World Society’. In Gunther Teubner (ed). Global Law without a State. Dartmouth: Aldershot. Tyler, Tom. 1990. Why People Obey the Law. New Haven, CT: Yale University Press. Vogl, Stefan. 2009. ‘Eugen Ehrlich’s Linking of Sociology and Jurisprudence and the Reception of his Work in Japan’. In Marc Hertogh (ed). Living Law: Reconsidering Eugen Ehrlich. Oxford and Portland Oregon: Hart Publishing, 95–123. Young, Kathryne M. 2014. ‘Everyone Knows the Game: Legal Consciousness in the Hawaiian Cockfight’. Law & Society Review 48(3), 499–530. Ziegert, Klaus A. 1979. ‘The Sociology behind Eugen Ehrlich’s Sociology of Law’. International Journal of the Sociology of Law 7(3), 225–73. Ziegert, Klaus A. 2002. ‘Introduction to the Transaction Edition’. In Eugen Ehrlich, Fundamental Principles of the Sociology of Law. New Brunswick/London: Transaction Publishers, 19–50. Ziegert, Klaus A. 2014. ‘Beyond “Living Law”: Eugen Ehrlich’s General Theory of Law’. In Knut Papendorf, Stefan Machura and Anne Hellum (eds). Eugen Ehrlich’s Sociology of Law. Zürich: Lit Verlag, 17–38.

11.  Sociology of legal culture David Nelken

What is the term legal culture good for? What part does it play – and could it play – in socio-legal research? As with many social science concepts, this one too is being used in a variety of ways. It hints at, without always bringing fully into focus, a range of issues concerning law and culture (comprising both high culture and popular culture), whether concerned with ‘culture in law’, ‘law in culture’, or even ‘law as culture’ (see, for example, Cotterrell 2004; Kahn 2000; Mautner 2011b; Mezey 2003). Some see it as an invitation to bring out the ‘culture’ that is implicit in a given legal system, including the attitudes and practices that law reflects and expresses. For others the question is more what makes a culture ‘legal’. The term is generally relevant for enquiries into what, if anything, gives coherence to law-related norms and practices found in groups and organizations. For those specifically seeking to develop a comparative sociology of law, the concept of legal culture can form part of the explanations as to why individuals and societies differ in their use of law, or why legal systems differ, for example, in their litigation or prison rates. The term is also relevant for policy enquiries such as those dealing with pluralist interactions between different kinds of law, or efforts to improve respect for law, or explain how far legal transfers from one society to another are likely to be successful.1 Such a variety of uses suggests the need for some such concept, especially as rival terms have had no greater success in gaining overall acceptance.2 But, if confusion is to be avoided, it is essential to be clear about what we mean by this controversial concept and what ‘work’ it is doing. It will be suggested here that different questions arise when we think about legal culture as a matter of facts, as an approach, and as a value, even if in practice any given research project is likely to touch on all of these meanings.3 As a set of facts, it is important to decide which units we are talking about and what, if anything, gives them their coherence; as an approach, to distinguish between explanation and interpretation, and their appropriate logics and methods; and as a value to see what hidden cultural assumptions may be guiding our preferences, for example in encouraging state-based versus alternative forms of ordering whether at home and abroad.

1

  See World Bank 2003, but compare Gillespie 2008.   We may leave on one side the empty (but still surprisingly common) term ‘legal system’, which lacks any theoretical pretensions. Genuinely alternative – or overlapping – concepts include most obviously ‘legal consciousness’ (Silbey 2005) and ‘law in action’ (Bruinsma and Blankenburg 2000). In response to criticism, Bruinsma chose this term to replace ‘legal culture’ as used in the title of earlier editions of his book about law in the Netherlands. Other possibilities include ‘legal discourse’ (Gillespie 2008), ‘legal ideology’ (Cotterrell 1997), ‘communities’ (Cotterrell 1998) ‘legal traditions’ (Glenn 2007), ‘legal mentalities’ and ‘legal styles’ (Merryman and Perez-Perdomo 2007), ‘legal complex’ (Halliday et al. 2007, 2012), ‘legal epistemes’ (Legrand 1997), ‘legal formants’ (Sacco 1991), ‘path-dependency’ (Mahoney 2000; Pierson 2000) ‘regulatory styles’ (Haines 2005), and even ‘legal autopoiesis’ (Teubner 1998). 3   This text relies on my previous attempts to survey the field, see especially Nelken, 2016. 2

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Sociology of legal culture  137

LEGAL CULTURE AS FACT With its multiplicity of referents, including states, organisations, institutions, groups, individuals and attitudes, what is described as ‘culture’ does not always mean the same thing, nor can it be expected to operate in the same way. It is therefore important for scholars to make clear what ‘facts’ they are referring to when speaking about legal culture and what, if anything, gives them their unity and their power. Are we speaking of attitudes and/or behaviour? Does culture designate what an individual or group holds most precious, or their deepest unarticulated assumptions. Should we reserve the term for irrational or value-based action, as opposed to purely instrumental social action? If we take culture, on the other hand, as an overall pattern or structure how does it relate to, institutions, social structure and culture more generally? Can it be plausibly separated from political, economic or religious culture? What sort and degree of coherence between the elements of a given unit is being presupposed? Friedman, who first introduced the concept as sociological ‘term of art’, used it to designate the key ‘variable’ that, in his language, ‘sets the legal system in motion’ (Friedman 1975). But he also uses it in his writings in what he calls the ‘anthropological’ sense (Friedman 2006) to characterise larger wholes, such as ‘American legal culture’ or even ‘modern legal culture’ (Friedman 1994). Here, legal culture is treated as a unifying, holistic concept, a widely shared way of thinking, talking and acting that organizes social life in particular times and places. Cotterrell famously objected that using the term both as a variable and as a whole risks circular reasoning (Cotterrell 1997). Friedman answered that legal culture was not itself a fact, but only a category in which a number of (measurable) facts can be included. These facts include the attitudes (and behaviour) of the legal officials and others who animate what he calls ‘internal legal culture’, as well as the attitudes towards the law of individuals, groups and organisations belonging to what he calls ‘external legal culture’. (Friedman 1997). But this reply does not really tell us how to avoid confusing the part and the whole. Merry suggests therefore that we should distinguish four ‘dimensions’ of legal culture: ‘the practices and ideologies within the legal system’; ‘the public’s attitude toward the law’; ‘the question of legal mobilisation, which refers to how readily people define their problems in legal terms, when they turn to the law for help’ and, finally; ‘legal consciousness, the extent to which an individual sees him or herself as embedded in the law and entitled to its protections’ (Merry 2012, 56–57). She concedes, however, that ‘each of these categories overlaps and influences the others’ (2012, 57). For comparative purposes there is often a strong case for using the holistic approach. In a paper trying to make sense of Italian court delays, I operationalized legal culture as follows: Legal culture, in its most general sense, is one way of describing relatively stable patterns of legally oriented social behaviour and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the ways judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and, at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are not just what we do. (Nelken 2004, 1; see also Nelken 2007a; 2007b; 2012)

Scholars take current nation states, historical entities, or social groups as their ‘unit’ of legal culture. Key cleavages may run between the West and the rest, or within major

138  Research handbook on the sociology of law groupings in western culture (Whitman 2000, 2004, 2007). Most commonly, works with titles like ‘Dutch Legal Culture’, (Blankenburg and Bruensma 1991), ‘The Japanese Way of Justice’ (Johnson 1996), or ‘French Criminal Justice’ (Hodgson 2005), presuppose the existence of distinctive national cultures, and differences are often thought to correspond most closely to political boundaries (see, for example, Gessner et al. 1996; Gibson and Caldeira 1996; Friedman and Perez-Perdomo 2003; Kurkchiyan 2011; Grodeland and Miller 2015; Fekete and Robert 2018). Contrasts between national units can involve approaches to law, regulation, administration or dispute resolution, the extent to which law is party or state-directed (bottom-up or top-down), the role and importance of the judiciary, or the nature of legal education and legal training. They may concern ideas of what is meant by ‘law’ (and what law is ‘for’), where and how it is to be found, types of legal reasoning, the role of case law and precedent, or of general clauses as compared to detailed drafting. There may be important differences in the degree to which given controversies are subject to law (rather than rival forms of ordering), the role of other expertise, and the part played by the closest ‘alternatives’ to law, including arbitration and mediation and the many ‘infrastructural’ ways of discouraging or resolving disputes. It can be especially productive to start from paradoxical or otherwise puzzling similarities or differences. Why did the UK and Denmark complain most about the imposition of European Union law, but then turn out to be the countries which had the best records of obedience (Nelken 2004)? Could Brexit even be linked to taking law too seriously? If Japan as a society tends to make relatively low use of law to resolve conflicts, why does law play such an important role in cases involving compensation for contaminated blood, the banning of smoking in public, or resolving trade disputes over tuna (Feldman 1997; 2001; 2006a; 2006b)? Given the similar legal and political systems that shaped them, why are prosecutors so influential in Russia but not in Poland (Polak and Nelken 2010)? Why is Italy in the lead among those states trying to assist victims of human trafficking when it is relatively inhospitable to the victim support movements? (Nelken 2011)? The answer to all these puzzles requires learning more about what is special about the relationship between law and society in the places in question and what explains its persistence. Legal culture can also be revealed by studying the specificities of branches of law, such as criminal law, family law, contract law, property law, copyright or bankruptcy. Tort law, for example, has been shown to be a fruitful source of cultural symbols – as well as an index of social tensions.4 But even apparently unconnected branches of law within a given society can manifest remarkable levels of cultural similarity (Whitman 2005). Those engaged in debates over why some countries have higher rates of incarceration than others (for example, the USA as compared at the other extreme to Japan) are unwise to ignore, as they tend to do, related differences in the extent to which the societies concerned engage in civil litigation. On the other hand, national legal cultures may be plural,5 and the boundaries of legal culture may not always be national ones. The ideas of family lawyers will usually have

4   Shapo (2003) provides a court-centred discussion, Engel and McCann, eds. 2009, a more wide- ranging one. 5   Bell tells us (already in his title) that even France’s famous centralised state needs to be described in terms of legal cultures (Bell 2001).

Sociology of legal culture  139 more in common with family lawyers in other jurisdictions than, say, copyright lawyers in the same country. The assumption of a coherent national ‘unit’ of legal culture is and always has been especially misleading in the many places in the world, characterised by competing religious and/or culturally based normative orders. And legal systems have always been affected by varied processes of borrowing, imitation and imposition. Even the legal culture of a nation state as important as China is subject to a variety of external influences and pressures as it embraces the demands of capitalist economics, trade agreements with the rest of world and World Trade Organisation requirements. Pre-existing norms that are local, informal, subjective and relational are challenged by the turn towards more formality and objectivity (Potter 2001). At the same time, we need to be careful not to take claims about the decline of the nation state too far. Because of the use of law in nationalising projects, there may even be more uniformity in a national legal culture than in respect to other aspects of culture. There is also some empirical evidence of psychological differences in national traits in the way people relate to each other (Bierbrauer 1994; Hofstede 1980; Verstappen 2014). And such historically conditioned sensibilities may persist over quite long periods. The rise of the transnational does not necessarily coincide with the decline of the national (Sassen 2006). What is referred to as globalization usually represents the attempted imposition of a given legal culture on other societies, a ‘globalised localism’. Importing countries may be offered both the Anglo-American model, whose prestige is spread by trade and the media, or national European versions of the more intellectually impressive continental legal systems embodied in ready-packaged codes. The Anglo-American model is characterized by its emphasis on the link between law and the economy rather than law and the state. But it also spreads the ideology of ‘pragmatic legal instrumentalism’, the very idea that law is something which does, or should, ‘work’. It can thus be important to look for similarities and differences in meanings and logics at different macro, mezzo and micro levels. These can range from that of super-national, national and community courts (Palmer 2015) to the culture of the local courthouse (Church 1982). National judges and other legal actors may choose whether or not to look to what happens elsewhere in developing their own jurisprudence. Judges working in hybrid international criminal courts, or those appointed to the European Court of Human Rights from different jurisdictions, are obliged to try to find a way to create a shared legal culture. Surprisingly, they largely succeed in doing so (Arold 2007; Nelken 2009). We also witness the growth of so-called ‘third cultures’ of international trade, communication networks and other transnational processes, as seen for example in lex mercatoria or cyber communities.

LEGAL CULTURE AS APPROACH The term legal culture can also be used to indicate an approach to the study of law in society rather than defining the object of an enquiry. It ‘offers a way of looking beyond doctrinal and, more generally, court-centred ways of thinking, so as to bring together the “legal” and “social” in investigating how law works, and show how it relates to other social constructs such as trust, justice, power, and group socio-legal identity’ (Kurkchiyan 2012, 221; see also Nicholson 2008). Comparative law scholars increasingly argue that

140  Research handbook on the sociology of law this approach can help substitute the old ‘legal families’ approach which placed exaggerated importance on the historical derivation of legal rules (Siems 2014; Husa 2015). Perspectives as varied as legal theory, legal history, organisational sociology, comparative politics, cultural psychology, institutional economics or semiotics all reference the term (though naturally these disciplines do not speak with one voice). The place that Friedman allocated for legal culture in his overall understanding of legal systems was that it explained differences in the extent to which people in different societies turned to the law (Friedman 1997). Interesting work has applied this idea to explain the degree of integration of migrants into their new legal culture upon arrival. We learn how Polish immigrants to the UK, at first, often put law on a pedestal as an idealistic aspiration rather than as something to be followed in everyday life. When faced with the choice to comply with the full panoply of legal requirements or remain in the black or grey economy, semi-legality felt at first like the safe and familiar option. But such attitudes changed over time towards a more willingness to comply (Kubal 2012; see also Shamir 2015). A study of differences in attitudes to law in Serbia discovered that it was those who had done best out of the larger social and economic changes in Eastern Europe who were most likely to endorse the rule of law, whilst those who remained disadvantaged were likely to refuse legal values (Vukovik and Cvejic 2014). Many other studies of legal consciousness provide crucial evidence for the sociology of legal culture (see Hertogh 2018; Chau and Engel 2019). Writing as a leading legal historian, Friedman also used the term legal culture as a way of pointing to the relative importance of social and technological developments, and the social pressures they build up, in shaping law. Valuable historical studies have followed his lead, examining how such changes shape the role of the legislator and the courts; for example, in producing unintended outcomes in US divorce law reform (DiFonzo 1997). The term has also been employed in comparative research, such as studies explaining differences in the way courts constructed private law remedies in Britain, France, Germany and the USA in the face of rapid industrial and social transformation (Steinmetz 2000), or differences in nation-state responses to mass toxic torts (Boggio 2003). Some have argued that this stress by Friedman on external legal culture downplays the importance of the legal institutions that shape ‘internal legal culture’. Blankenburg put forward an important challenge using a case-study designed to explain why Germany made so much more use of the courts than the contiguous areas of Netherlands, despite being allegedly so similar socially and economically. Comparing the range of formal and informal dispute mechanisms in both countries, he argued that rates of litigation were better explained by institutional and what he calls ‘infrastructural’ differences on the supply side of law, rather than by differences in the demand for law deriving from the folk culture of each country (Blankenburg 1997; but see also Hertogh 2012).6 There was a similar, if often over-simplified, long-running debate over the supposed role of culture in explaining low rates of litigation in Japan. Was this better explained (on the demand

6   It is not obvious, however, that Blankenburg’s contrast between supply and demand corresponds to the way Friedman would use his categories of internal and external legal culture. And any effort to explain why supply side institutions take the form they do might also need to bring the demand side back into the picture (Nelken 1997).

Sociology of legal culture  141 side) by alleged cultural resistance to exacerbating conflict (Miyazawa 1987) or, instead, (on the supply side) by deliberate, government-created limitations on the opportunities to go to court (see for example Haley 1978; Upham 1987)? But, whereas the Japanese debate contrasts the role of institutions with (folk) culture, Blankenburg prefers to argue that institutional structures and infrastructures should themselves be called legal culture. More recently, (though without citing him), Smulovitz reached similar conclusions about the relative importance of institutions and the supply side of legal culture in explaining socio-legal change in Argentina. She argued that the increasing turn to formal institutions was related to growing judicial independence and the experience and confidence of lawyers. By contrast, survey evidence indicated that citizens’ ideas about law played only a minor role in this process (Smulovitz 2010, 251).7 Efforts to use legal culture as an explanation, as already noted, have not gone unchallenged. Kenney argued that, like the concept ‘political culture’, (which may have influenced Friedman’s choice of terminology), it is ‘everything and nothing simultaneously’ (Kenney 1996). For Webber, too, ‘legal culture risks being a superficially attractive but ultimately obfuscating concept, insisting upon interdependency but then cloaking that interdependency under the rubric of a single concept, doing nothing to tease out the specific relations of cause and effect within any social field’ (Webber 2004, 28). This problem could be avoided if (contra Friedman) legal culture was treated not as an approach but as a fact, something that itself needs to be explained. If we were to ask why Italy suffers long court delays, it could indeed be circular to attribute this to legal culture, given that delay was itself one of its constituent features. But we could still set out to link Italian court delays to a host of other specific legal, social, economic and political features of the same society (Nelken 2004). Enquiries into legal culture, seen as something that itself needs to be explained, look for factors that lie behind why the USA criminal justice system is so harsh (Whitman 2003), why there is so much difference between the effectiveness of the higher courts in India and the inadequate performance of those lower down (Galanter 2009), and why reckless driving is so common in Iran (Banakar 2015). But approaches may differ more fundamentally. For Friedman, legal culture involves studying attitudes and/or behaviour. But much recent work on legal culture, following the ‘interpretative turn’, has shifted to analysing the production and circulation of discourses. Studying legal culture, it is suggested, offers ‘an entry point into the distinctive cultural ‘logics’ at work, distinct ways of seeing into which the researcher must struggle to enter’ (Field 2012, 324). Many such studies seek to show by means of ‘thick description’ how law ‘constitutes’ social practices and contributes, in Geertz’s terms, ‘to a definition of a style of social existence’ (Geertz 1983, 218). Rosen, following in his footsteps, advises us to study ‘law as a discourse that shapes consciousness by creating the categories through which the social world is made meaningful’ (Rosen 2008, 3). Such hermeneutic investigations reveal how given aspects of a society’s law-related practices resonate with other features within and outside the conventional boundaries of the legal system. ‘Telling differences’ may be found in the local meanings of terms such as ‘discretion’ (Nelken 2013) or ‘community’ (Zedner 1995). Changes arise in the meaning of ‘contract’ in a society

7   The picture is complicated by evidence that people’s attitudes towards the law and their actual use of the courts may sometimes be inconsistent (Hendley 2013; Smulovitz 2010).

142  Research handbook on the sociology of law where the individual is seen as necessarily embodied in wider relationships (Winn 1994). It is not without significance that the Japanese ideogram for the new concept of ‘rights’ came to settle on a sign associated with ‘self-interest’ rather than morality (Feldman 1997). Interpretative approaches acknowledge that it may be hard to make predictions. For Kurkchiyan, legal culture ‘is the product of a convoluted interplay between historical legacy, institutional performance and popular attitudes’. ‘(S)uch a broad picture’, she says, ‘does not allow causal analysis, but it does have the potential to explain how law is embedded in the social texture and how it relates to other concepts such as justice, trust and the rule of law (Kurkchiyan 2012, 250). In comparing dispute-processing institutions, Chase tells us that ‘processes of legal decision making share the logic by which the culture as a whole is put together’. He argues that ‘the metaphysics, values, symbols, and social hierarchy of any collectivity will set the bounds within which it organizes its disputehandling institutions’ (Chase 2007, 5). But he admits that it is important not to exaggerate the isomorphism between legal culture and its social environment. Law, he tells us, has a discursive life of its own; dispute institutions ‘do not move in lock step with even deeply held values’, and ‘cultures, when contested or out of step, could with equal plausibility explain the development of completely different dispute institutions’ (ibid 92). For Silbey, legal culture, like culture itself, is not a coherent, logical and autonomous system of symbols, but rather a collection of resources that are deployed in the performance of action. Even lay people can add new elements to the lived experience of law by constructing intelligible and plausible claims to legal right out of discursive resources concerning ideas of labour, property, notice and community consent (Silbey 2012, 329–30). The purported uniformity, coherence or stability of ‘imagined communities’ or ‘invented traditions’ will often be no more than an ideological projection or rhetorical device (Coombe 1998).

LEGAL CULTURE AS VALUE There are a variety of ways in which normative questions enter explicitly or implicitly into comparative enquiries about legal culture. Most obviously, the aim may be to offer evaluations of types of culture; for example, of individualistic as compared to communitarian legal cultures (Tanase 2010). There is also the question of how far differences in legal cultures should be preserved or rather normalised or harmonised away. Writing about what he calls ‘the politics of legal cultures’, Banakar asks how far ‘acceptance or rejection of the legal culture of the “other” is a function of an assessment of the actual compatibility of the cultures in question, that they can or cannot coexist in the same social space, and to what extent is it the outcome of legal ideologies and transient socio-political interests?’ (Banakar 2008, 153). Some writers object strongly to the use of the term culture. Many human rights projects see their task as overcoming excessive deference to harmful cultural practices regarding women, children or minorities. Cultures are too easily thought of as ‘super organic’ or ‘substantive, bounded entities’ instead of ‘shreds and patches remaking themselves’ (Glenn 2004); they are prone to be understood as essentialist, over-determining and xenophobic (Kuper 1999). Reference to (legal) culture can easily justify fatalism in the face of possible change, as when it was alleged that the new East and Central European accession

Sociology of legal culture  143 countries to the European Union would be unable to escape the cultural patterns inherited from their communist past (Krygier 1996–97). But the concept is not bound to carry these connotations. The German word kultur emerged as a defensive term to be used in romantic opposition to the French universalizing idea of civilisation, for which today’s discourses of democracy and human rights could be considered equivalents (Kuper 1999). Friedman’s work is in fact about showing how social and technological change succeeds in reshaping law. His claims about convergence and the role of modernity as we move to a global legal culture based round the ideas of individualism, equality, and human rights are much closer to the French idea. Whatever may be true of the term ‘culture’, in many places (and languages) the term legal culture is used with an unequivocally positive meaning. This is because it is taken to point to the aspiration towards the ‘culture of legality’ that is the ideal of the rule of law. Some authors from the Global South, writing, for example, about processes of judicialisation and juridification in Latin America, even use the terms legal culture and the culture of legality as if they were interchangeable (Couso et al. 2012). Treating legal culture as the name of an ideal is also common in those jurisdictions (or parts of jurisdictions) such as the former Soviet Union, Latin America, or the south of Italy, where state rules are systematically avoided or evaded. In these places, as seen from the state’s perspective, there is a ‘culture of illegality’; thus the normative goal is to get ‘legality’ into the culture of everyday social and political life by reorienting the behaviour of such populations towards (state) law. Arguably, it might be better to reserve the term legal culture for descriptive/explanatory purposes, and the ‘culture of legality’ for normative and evaluative ones. This would then make it possible to examine what sorts of legal cultures are more or less conducive to ‘the culture of legality’.8 Many social scientists do seek to distinguish states geared to rule by law as opposed to the rule of law. Gillespie, for example, argues that the rule of law requires a state ‘to relax controls over social discourse, open lawmaking forums to a broad range of views and give citizens effective recourse against abuses of state power’ (Gillespie 2006). Others suggest that the call for the rule of law needs to be modulated according to wider social conditions (Perenboom 2003). And a number of recent case-studies offer detailed examinations of the making and unmaking of the rule of law. The fate of political liberalism in British post-colonies turns out to be closely tied to the patterns of instrumental use of law first established under colonial rule. (Halliday et al. 2012; see also Man and Wai 1999). Chanock provides an incisive historical account of the role of courts in apartheid South Africa (Chanock 2001). A valuable study of Singapore’s predominantly one-party state shows that law serves as a form of legitimation in a regime that combines economic liberalism with political illiberalism (Rajah 2013). Governments in places like Russia, Poland and Hungary are also finding ways to use law instrumentally, by exploiting loopholes in their constitutions or packing the higher courts. How far can courts retain their autonomy when political conditions harden?

8

  This involves matters such as access to law, legal education, transparency, separation of powers and so on. Levels of rule of law are now assessed through global social indicators of governance such as the World Justice Project. See https://worldjusticeproject.org/

144  Research handbook on the sociology of law Those judges who embraced formalism helped law in Argentina survive the dictatorship, but they are now criticised for permitting those dictatorships to continue. An account of Israeli legal culture tells us how the role of its Supreme Court changed following the decline of political and cultural hegemony of the Labour movement. An activist court buttressed the liberal elites, albeit protecting negative liberties more than positive social rights, defended the secular camp against the rise of religion, and provided a significant, if not always consistent, defence of the Arab minority. Surprisingly, the newly dominant political groups at first let this pass, being content with their political power (Mautner 2011a). But they have now begun a determined counter attack. Deciding what is involved in creating a culture of legality is not (just) a technical question. Is it necessarily beneficial to replace given social norms with those of the nation state in the context of developing economies with their typically strong legal pluralism, institutionally weak governments and recurrent political instability? How far does the rule of law require greater involvement of the courts in social life? When should political activists choose litigation rather than other routes to change? Do people always want legality? Neo-cultural interventionists, carriers of the latest instantiation of the ‘law and development’ movement, aim to achieve a ‘rule of law culture’ while taking account of local patterns of legal consciousness. But they have been criticised for underestimating the extent to which people can put greater legality to uses directly contrary to the rule of law agenda (Cohen 2009). Silbey, on the other hand, is puzzled by people’s faith in legality in the USA, and finds it remarkable that diverse and sometimes contradictory legal practices are nonetheless experienced by lay participants as a taken for granted unity (Ewick and Silbey 1998). She asks why the ideal of legality retains its hold even when it does not deliver. ‘Why do people acquiesce to a legal system that, despite its promises of equal treatment, systematically reproduces inequality?’ (Silbey 2005, 323). She suggests that the discrepancy between generalized accounts of law and the specific experiences of social actors actually acts as a source of law’s power. When made by authorised interpreters, claims about the contents of culture – or, better, legal culture – are themselves ‘performative’ acts; ones with legal, and often also social, consequences. Webber argues that social actors such as judges collectively create a shared culture through their acts. For him, ‘the integrity of cultural explanations does not depend upon the “units” being exclusive, fully autonomous, or strictly bounded. Rather, it depends upon there being sufficient density of interaction to generate distinctive terms of evaluation and debate. When there is that density, any examination of decision-making in that context will want to take account of those terms’ (Webber 2004, 32). But authorised definitions of legal cultures do not always go unchallenged. As Sezguin shows, subaltern groups often question the legitimacy of existing power relations and offer new images and narratives of legality through which they will redefine their rights and entitlements under the law. Often times they will do that without necessarily altering the ‘law’ or the ‘text’ in question, but the legality built around it (Sezguin 2012). As diaspora communities grow, so do the problems posed by legally pluralistic societies. Legal actors, and the experts who advise them, face a variety of challenges in understanding the cultures of recent immigrants and other minority groups (Shah 2005). In cases involving so-called cultural defences, for example, courts have to decide if the person claiming such a defence is a member of the culture of which s/he claims to be part. What if the practice defended is itself controversial within the other culture? (Renteln 2004).

Sociology of legal culture  145 Not least, there is the challenge of understanding our own cultural and normative biases. Can legal culture be theorised except from a given cultural starting point? Seen from the perspective of a somewhat idealised picture of European forms of social regulation, American legal culture is found to be far too adversarial and costly (Kagan 2001, Nelken 2003). On the other hand, when the USA is taken as the standard, legal culture in Brazil is felt to lack elements of legality (Zimmerman 2008). Many accounts of legal cultures tell us more about the observers’ own culture than they do about what is being described (Ferrarese 1997). Many continental European writers equate what they call juridical culture with how judges shape legal tradition, doctrine and jurisprudence (Rebuffa and Blankenburg 1993), exactly what Friedman wanted his concept to put into question! It is even possible to read the debate between Friedman and Blankenburg as one shaped by differences in their home Anglo-American and Continental European legal cultures. In Anglo-American legal culture (as civilian scholars categorise it), law should respond to public demand – hence the priority given by Friedman to ‘external legal culture’, whereas, for the Europeans, this would risk weakening the role of the state, legal institutions and legal professionals. Again, Friedman’s version of the Anglo-American idea of legal culture may be unhelpful when applied to countries with strong religious cultures such as Thailand (Engel and Engel 2010). Instead of accepting Friedman’s own view of ‘internal’ and ‘external’ legal culture as neutral analytical categories, Engel sees them as a product of the legal culture that they purport to analyse. For him, Friedman’s concern with law having an ‘inside’ and an ‘outside’ is itself a reflection of the ‘project’ of modernity, aimed at securing liberal legalism and secularism, keeping politics and economics subservient to law and ensuring that civil society plays its proper role (Engel 2012).

CONCLUSION In this overview we have shown how sociological uses of the term legal culture vary considerably: they can refer to given facts about law, seek to advance approaches that stress law’s links with its context, or highlight what is entailed by the ‘culture of legality’. Undoubtedly, it will often be important to keep such uses distinct. But there is still much to learn about each of these uses – and the many ways law and culture intersect. On the other hand, as we have seen, there are also those who argue more radically that this term cannot bear the burden of the work that it is asked to do within the sociology of law, and that we need more specific concepts dealing with the different processes it encompasses or questions that it raises (Merry 2012). The most successful rival term currently popular with scholars is legal consciousness. But this begs the question how far culture is reducible to the study of individual perceptions and opinions about law (are cultural frameworks matters that are held to most passionately, or those which are most taken for granted?). Critics of the latter term complained of the neglect of macro social factors that a focus on legal culture is less likely to obscure (Silbey 2005). But the more we seek to use legal consciousness to address these larger concerns, the nearer we get to reinventing legal culture. At the least (but this is not a small matter) even if they decide to abandon it as a term of art, sociologists of law must at least seek to map the different uses of the term in social life.

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Sociology of legal culture  149 Steinmetz, Willibald. 2000. Private Law and Social Inequality in the Industrial Age: Comparing Legal Cultures in Britain, France, Germany, and the United States. Oxford: Oxford University Press. Tanase, Takase. 2010. Community and the Law: A critical reassessment of American liberalism and Japanese modernity. Cheltenham: Edward Elgar Publishing. Teubner, Gunther. 1998. ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences’. Modern Law Review 61, 11–32. Upham, Frank K. 1987. Law and Social Change in Postwar Japan. Cambridge, MA: Harvard University Press. Verstappen, Jasper. 2014. ‘Cultural Obstacles to European Legal Integration: Applying Hofstede’s Cultural Dimensions Theory’. Maastricht European Private Law Working Paper papers.ssrn.com, 2014/17. Vukovic, Danilo and Slobodan P. Cvejic. 2014. ‘Legal Culture in Contemporary Serbia: Structural Analysis of Attitudes Towards the Rule of Law”. Annals fac. L. Belgrade int’l ed. 52–73. Webber, Jeremy. 2004. ‘Culture, Legal Culture, and Legal Reasoning: A comment on Nelken’. Australian Journal of Legal Philosophy 29, 27–36. Whitman, James. Q. 2000. ‘Enforcing Civility and Respect: Three Societies’. The Yale Law Journal 109, 1279–1398. Whitman, James Q. 2003. Harsh Justice. Cambridge, MA: Harvard University Press. Whitman, James Q. 2004. ‘The Two Western Cultures of Privacy: Dignity Versus Liberty’. Yale Law Journal 113, 1151–1221. Whitman, James Q. 2005. ‘Response to Garland’. Punishment and Society 7, 389–96. Whitman, James Q. 2007. ‘Consumerism versus Producerism: A Study in Comparative Law’. Yale Law Journal 117, 340–406. Winn, Jane K. 1994. ‘Relational Practices and the Marginalization of Law: Informal Practices of Small Businesses in Taiwan’. Law and Society Review 28, 193–232. World Bank Legal and Judicial Reform: Strategic Directions. 2003. [online]. Available from: http://documents1. worldbank.org/curated/en/218071468779992785/pdf/269160Legal0101e0also0250780SCODE09.pdf Zedner, Lucia. 1995. ‘In Pursuit of the Vernacular: Comparing Law and Order Discourse in Britain and Germany’. Social & Legal Studies 4, 517–34. Zimmermann, Augosto. 2008. ‘The Politics of Lawlessness in Brazil: How Brazilian Politics Overrides the Rule of Law’. European Law Journal 15, 3–42.

12.  Sociology of the legal system Richard Nobles and David Schiff

INTRODUCTION The claim that law operates as a system, characterised by the ubiquitous use of the phrase ‘the legal system’, plays an array of different roles within sociological research into law, socio-legal studies and jurisprudence. Within jurisprudence, much time and many words have been devoted to the discussion of whether law exists as or within a system, and what could enable it to do so. Legal positivism, twentieth century prototypes being Hans Kelsen’s Pure Theory of Law (1967), H.L.A. Hart’s The Concept of Law (1961) and Joseph Raz’s The Concept of a Legal System (1970) are theories which, despite their differences, apprehend law as a normative system, separate from other normative systems such as morality. Whilst Hart claimed that his approach was an example of descriptive sociology, his concept of law gives rise to no need for sociological theory or method in order to elucidate on law as a system constituted by the union of primary and secondary rules. Kelsen (and also Raz) was even clearer about the division of roles between legal science and sociological knowledge of law, rejecting syncretism, but prioritising law as a normative system as the appropriate description of the distinctively legal within society. Sociology could observe facts about law, such as its causes and effects, but law itself exists as or within a system of norms or rules and, as such, has ‘the kind of unity we understand by a system’ and thereby ‘a concept serviceable for the cognition of social life’ (Kelsen 1945, 3 and 4). A large portion of socio-legal studies takes issue with legal positivism, as represented above, and also with many varieties of natural law, challenging the idea that law operates as a separate and autonomous normative system distinctly separate from (à la positivism), or intrinsically instantiated by, morality (à la natural law). Instead, law is explored via theories and methods that seek to make visible what in particular the positivist theories seem to deny – that law, in its creation and operation, is constituted through politics, economics, power, race, gender, violence and so on. Alongside these critical challenges to legal positivism’s version of law operating as and within a legal system, much sociological research into law feels no need to engage with other theoretical views on the systematic nature of law. Here one finds sociological methods, quantitative and qualitative, being used to observe on processes and institutions that are generally accepted as ‘legal’ in nature and part of the legal system: the courts, police and regulatory authorities. Where the object of research lies outside the paradigmatically ‘legal’, it seems sufficient to draw attention to features shared with central cases – normative rules or other standards and enforcement processes – without seeking to articulate a wider theory of what distinguishes the legal from the rest of society, and what forms part of the legal system. Denying law’s existence as a separate system, or ignoring it – is there a third possibility for sociologically informed research into law, using the idea of law as a system? Within sociological theory there is, for example, an approach that makes the notion of system 150

Sociology of the legal system  151 central to the observation of society and thus law within society: systems theory, as developed in the middle of the twentieth century by Talcott Parsons, extended by Jürgen Habermas and radically reformulated in the second half of that century by Niklas Luhmann. Law, within this strand of sociological theory, is one of society’s subsystems.

A FUNCTIONALIST APPROACH TO THE OBSERVATION OF LAW Within mainstream sociological theory, systems theory primarily lies within what is termed the functionalist approach towards the observation of society, based largely on the works of Spencer, Durkheim, Parsons and Merton and, more recently, Luhmann. At its most basic, functionalism begins with the recognition that certain tasks have to be performed for any human group to survive and advance, such as sexual reproduction, access to and distribution of natural resources and dispute resolution. Adopting a functionalist approach, one looks to see how these tasks are discharged within society. Drawing on biological concepts of living systems, the approach treats society as a system whose interdependent parts contribute to (functional) or threaten (dysfunctional) the continued survival of the whole.1 A central concern of this approach, in common with others, is the need for congruent expectations, both normative and cognitive, if interdependence is to be functional. The intensification of complexity in modern societies increases the need for co-ordinating expectations whilst at the same time reducing the degree of common experience that, within smaller tribal societies, might be expected to produce consensus. Alongside the need for congruent expectations, there is also a need for adaptation, as the processes that generate the proliferation of complexity do not cease. Neither society nor any of its parts operates within an unchanging environment. So, the functionality of any social phenomena, including law, cannot be understood solely in terms of congruent expectations (order); it must also include an explanation of how change is stimulated, and managed. In the sociological version of functionalism articulated by Talcott Parsons, society is a social system which, to survive, must execute four general functions: adaption or adaptation (to the physical environment); goal attainment (organising society’s resources to achieve goals); integration (managing internal tensions and conflicts); and pattern maintenance or latency (how society maintains and reproduces itself over time). Whilst all four functions need to be executed within society for society as a whole to continue, social subsystems display less self-sufficiency. They contribute to the execution of these functions within society to different degrees, and depend for their own survival (which involves their own internal execution of these four functions) on support from other

1   ‘“Functionalism” is a way of thinking that describes and explains social phenomena by pointing to the functions that they fulfil within a greater whole’ (Joas and Knöbl 2009, 56). We adopt Parsons’ systems theory as an example of ‘functionalism’ here because, as Joas and Knöbl stress, it involves a classic synthesis of much sociological theory, but also because of the adoption and development of his theory by Luhmann’s systems theory, to which it can be contrasted. We also briefly consider Habermas’ theory and a more modern and much less sociologically inspired form of systems analysis, that of complexity theory – against which, again, Parsons’ and Luhmann’s accounts can be contrasted.

152  Research handbook on the sociology of law subsystems. Within Parsons’s scheme of analysis, the economy is principally responsible for adaptation, and politics for goal attainment. The legal system he described as a general system of social control, which operates through the economy and politics (contributing to adaptation and goal attainment) as well as pattern maintenance.2 Its primary function is integrative,3 both in the sense of resolving disputes and as a mechanism for integrating the other three functional systems by combining political power (sanctions) with the economy (via the self-interest of individuals creating private law) and as a normative system, drawing on morals (pattern maintenance, which he later described as societal community, and the fiduciary system: Parsons 1977, 33–36). Using this scheme of analysis, one can seek to describe the contribution made to what one identifies as the legal system, or one of its parts, to the continuation of society. Within this approach, the legal system is not a closely defined empirical reality. For even though Parsons himself used the term legal system, he described law as a ‘set of proscriptions . . . bearing on social action and more or less systematically organized’ (Parsons 1977, 33). He also defined law more broadly as: . . . any relatively formalized and integrated body of rules which imposes obligations on persons playing particular roles in particular collectivities . . . [provided that there is also] a machinery of authoritative interpretation, i.e. something analogous to a system of courts, and a machinery of the definition and implementation of sanctions, and a relatively clear focus of legitimation. (Parsons 1959, 184)

With this institutional definition, Parsons analysed law by reference to its contribution to the social system (society) and its functional subsystems (as set out above). Conceived as a system law, like the economy or politics, these subsystems can be presumed to have the same functional needs as the social system as a whole. So, one can consider how adaptation, goal achievement, integration and pattern maintenance executed by law are conceived as a system or, if one prefers, how the legal profession or legal institutions, conceived as institutional elements of the legal system, achieve these functional requirements. As an approach to the observation of law or other social phenomena as systems, Parsonian systems theory has many well-rehearsed weaknesses. It assumes that functionality is normal and dysfunctionality the exception, thus tending to see law as contributing to consensus rather than conflict. This not only runs counter to conflict theories, but it also ignores the obvious fact that law regularly generates forms of conflict which otherwise would not occur. Consider, for example, the antebellum Fugitive Slave Laws in the United States, which required citizens to assist those seeking to recapture escaped slaves, or the midnineteenth century Dred Scott case, which overturned the compromise reached between the slave owning and the ‘free’ states, thereby precipitating the Civil War. As a theory to inform legal research, it assumes that one can identify the functionality of law and its parts, leading to claims that the law, or some part of it, fulfils and is a response to particular needs. This is problematic, particularly when one has to take account of side effects. For example, Parsons felt that a ‘latent function’4 of the legal profession is to persuade clients to settle

2

  Parsons 1962, and much more fully in Parsons 1951.   Parsons 1977; Bredemeier 1962. 4   On manifest (intended) vs latent (unintended) functions, see Merton 1968, 73–80. 3

Sociology of the legal system  153 disputes without going to court, which comes close to claiming that the function of law is to do what law does,5 or even that its function is what it claims to do (Parsons accepted that some lawyers engage in ‘therapeutic’ and even unethical ‘dysfunctional’ behaviour).6 And, even assuming one can identify what within the legal system might be functional for society, this can amount to circular reasoning being presented as causality – society gets what it needs (from law as with every other part of society) to be what it is.7 Within Parsons’ theory, priority is given to the provision, within systems, of norms and values as a means to integrate and co-ordinate human action8 – a prioritising which has particular resonance for law. But this raises the same kinds of causal issues as the identification of function: how does society or its parts derive the needed norms and values? And this emphasis on norms in the construction of all systems of action is contradicted by empirical evidence that shows norms, far from providing objective constraints to human action, are the subject of negotiation as to their meaning, both at the point of creation and of application.9 Habermas offered some answers to these questions with his distinction between social systems (most notably bureaucratic administration and the economy) and the lifeworld. The distinction between these two lies in the respective roles played by communicative action, whereby individuals act on the basis of interactions which involve, or attempt to achieve, mutual understanding, and instrumental rationality, which organises action without consensus via the pursuit of self-interest. Within systems, interaction between individuals is orientated to symbolic media: money and power. Like Parsons, Habermas saw the function of law as integrative. Law acts as a bridge between the instrumental rationality of systems and the mutual understandings (of both facts and norms) generated within the lifeworld: The legal code not only keeps one foot in the medium of ordinary language, through which everyday communication achieves social integration in the lifeworld; it also accepts messages that originate there and puts these into a form that is comprehensible to the special codes of the power-steered administration and the money-steered economy. (Habermas 1996, 81)

For Habermas law is both a system of (normative) knowledge and a system of action (Rehg 1996, xxiv). The two are entwined because law offers individuals both self-interested reasons for action (coercion) and normative justifications. To execute its function, law cannot be a closed system but must continue to have access to norms generated in the lifeworld. Thus, as a system of knowledge, it needs to be more than a formal hierarchy of norms (à la Kelsen). The contact with the lifeworld can be maintained

5

  So, one might conclude that one of the functions of law is to provide ‘lawyers with income’: Luhmann 2004, 149. Here, at note 17, Luhmann discusses the many potential ‘functions of law’ and actions of lawyers, and what issues (especially that of the unity of law) those perspectives avoid. 6   See Parsons 1964, especially at 379–85. 7   For a trenchant critique of ‘legal functionalism’, see Gordon 1984. 8   Parson’s social systems analysis is often referred to as normative functionalism. 9   As well as the empirical evidence presented by the proponents of symbolic interactionism and ethnomethodology, one can also refer to Luhmann’s early work exploring the irrelevance of norms in structuring action within formal organisations. This is explored succinctly by Joas and Knöbl 2009, 264–66 under the heading of ‘Niklas Luhmann’s Radicalization’.

154  Research handbook on the sociology of law through citizen involvement in democratic political discourse which generates mutual understandings enacted as legislation, and judicial adjudication which is committed not only to consistency, but also to the moral justification of decisions.10 The functionality of law’s integrative role arises from Habermas’ view that the lifeworld, which operates through communicative rationality, integrates the personalities of human beings into society, whilst systems, which organise themselves as the unintended consequences of disparate individual actions, do not. Systems, whilst they offer increased complexity and productivity, nevertheless increase the likelihood of human alienation. Modern positive law has contributed to this risk by providing technical normative support for systems that has allowed them to develop autonomously from the lifeworld. But, at the same time, because it is a discourse of justification, and finds those justifications through the same forms of discourse that engender mutual understandings in the lifeworld, it ensures a continued connection between lifeworld and systems, and in turn human personalities. In terms of a sociological research11 agenda, Habermas offers a frame of analysis for examining if and how law is executing its claimed integrative function: as normative support to systems, a bridge between systems and lifeworld, and a means to give institutional expression to norms arising within the lifeworld. All areas of social life can be the subject of such an enquiry. As an action system, which is how Habermas describes the legal system in a ‘broad sense’, the legal system includes the ‘totality of interactions regulated by legal norms’.12 This includes formally organised spheres such as the economy or the state apparatus where, Habermas claims, ‘most interactions are guided by law and, even from the actor’s perspective, referred to law’. It also extends, though to a lesser extent, to spheres that are primarily constituted through ‘extra-legal’ institutions that merely have ‘an overlay of law’, where ‘it is only in cases of conflict that the law emerges from the background and awareness of the actors.’13 The overall functional hypothesis is difficult to test empirically, even though the law can be shown to be a carrier of system rationality into the lifeworld (leading to commercialisation and bureaucratisation of, for example, education and social care), as well as a carrier of lifeworld norms into systems (such as the duty of good faith within business relationships). Luhmann’s sociological description of the legal system offers a much more developed idea of system as integral to the understanding of society, one which is equally applicable to the legal system as well as other systems, such as that of the economy, politics, mass media and science, as well as society as a whole.

10

  Habermas 1996, Chapter 5, ‘The Indeterminacy of Law and the Rationality of Adjudication’.   Whilst Parsons’ writings are clearly intended to construct a framework for sociological research, this is not Habermas’ focus. Whilst there is a general functionalist thesis, much of his analysis of law is an exploration of the implications of his version of action theory for legal and political philosophy. 12   Habermas’ analysis of the legal system in the ‘narrower sense’ is an exploration of the implications of his theory of the different rationalities of system and lifeworld discourse for legal theory, which ‘remains first of all a theory of adjudication and legal discourse’ (Habermas 1996, 195–97). 13   This sweeping empirical claim is belied by Stewart Macauley’s classic 1963 study showing that businessmen frequently do not resolve conflict with their contractual partners by seeking to enforce contractual terms through legal procedures. 11

Sociology of the legal system  155

LUHMANN’S SYSTEMS Luhmann, in his last book analysing law, discussed the relationship between legal and social theory.14 He expressly offered his version of systems theory (autopoietic systems theory) as a means of moving beyond what he saw as the then opposition between sociological and juristic approaches: ‘Sociologists observe the law from outside and lawyers observe the law from inside’ (2004, 59).15 But let us begin with those aspects of Luhmann’s theory that offer a response to the criticisms of Parsons’ theory that we have outlined above. Luhmann’s version of systems theory does not claim that existing social structures execute necessary functions. Instead, we can observe the problems currently solved by existing structures (for society as a whole, as a system, and for the continuation of the social subsystems operating within it) and consider the possibilities (including the difficulties) of evolving replacement structures (functional equivalents). At the most general level the legal system, as a system of positive law, has the general function of generating normative expectations. This is not a claim that the legal system is the sole generator of normative expectations. Neither is it a claim that this function determines what will occur within the legal system in terms of its roles, doctrines, decisions and so on. Rather, it is an observation that the complexity and specificity of normative expectations, able to support the operations of other social systems / subsystems (the economy, politics, science, education, art, mass media), is currently provided by the legal system, leaving these other systems with different functions (functional differentiation) – science to identify truth, education to socialise and so on. Each of these other social subsystems generates norms, but not norms with the universal and technical capacity of those of the legal system. Normative expectations are commonly associated with morality. However, for Luhmann, morality is a source of critique and not a source of values structuring operations within any social system, including law (Luhmann 1993, 995). This is because the moral code, which Luhmann saw as esteem / not esteem, does not equate to what is good or bad within system operations. A good doctor, lawyer, scientist, operation, trial or experiment is established by reference to criteria generated within each of the separate systems involved. Morality as critique does not provide a root to generate structures on a systematic basis within any of society’s subsystems and their operations (which is not to say that communications with moral syntax – good/bad, and so on – will not feature). Unlike Parsons’ version of functionalism, there is no claim that norms have a cybernetic priority in the structuring of action. Rather, norms offer, like all structures, a memory which both facilitates and restricts the possibilities of what, at any point in a system, will be communicated. This difference from Parsons is important. But there are even more radical differences. The legal system for Luhmann is not an institutional structure operating within a more general functionally defined system. Instead, it is an autonomous 14

  See Chapter 1, ‘The Location of Legal Theory’ in Luhmann 2004.   In this same chapter Luhmann divides legal theories into those that seek to ground themselves in their connectedness to legal practice and those that offer external critique. Even the latter are not wholly divorced from legal practice as they tend to take as their object law as a system of norms, which is, within Luhmann’s analysis, itself a construct of the legal system, which identifies itself with norms and its environment with facts, but creates both through the same operations. 15

156  Research handbook on the sociology of law subsystem which, along with the economy, mass media, politics, religion, science, and so on, operate within a modern functionally differentiated society (society itself conceived of as a system). Luhmann has a very different understanding of what constitutes a system. For Parsons: The social system is . . . made up of the relationships of individuals . . . it is a system which is organized around the problems inherent in or arising from social interaction of a plurality of individual actors . . . (Parsons and Shils 1951, 8)

By contrast, for Luhmann social systems (which include society, social subsystems like law, organisations and face to face interactions) consist of communications.16 So, law as a system consists of legal communications, science of scientific communications, and so on. His analysis de-centres the individual: first, in the sense that what is observed as the legal or any other social system is a system of communication, not the individuals whose intentions and behaviour are given meaning by those systems; and second, and here Luhmann and Parsons are on common ground, in the sense that one needs to look to social systems rather than individuals in order to understand the possibilities for complex forms of co-ordination of human behaviour, and the ongoing evolution of those forms. Within Parsons’ work, the boundaries of systems are established by function. In his analysis of the economy, the boundary of this system, with its primary function of adaptation, is established through involvement in production; so, consumers are not primarily part of the economy. The economy is not a separate empirical reality, as all actors including institutions (collectivities) are multi-functional. Companies, charities and government administered services only form part of the economic system by reference to their contribution to production. It is this functional relationship – the contributions of parts to a whole – which establishes membership and the boundaries of a system. For Luhmann the boundary between the legal system and its environment (as with the boundaries between other social subsystems and their environments) is not established by necessary institutional features, or by function, but through its code. Legal communications implicitly or explicitly code through the application of the code legal/illegal. Science codes the world in terms of true/false, the economy codes in terms of payment/non-payment. The application of the positive side of the legal code establishes what lawyers refer to as ‘validity’. In all social subsystems the positive side of the code offers greater scope for connection than the negative side. So, for example, valid contracts, wills, convictions, and so on provide the basis for further legal communications. Illegalities quickly revert to connections based on legality – a robbery (illegal) leads to legal investigations, trials, convictions, imprisonment, and so on. Within this understanding of system, the legal system, like other subsystems, can only continue by using communications which apply its code. Luhmann’s version of the legal system takes research into the legal system in new directions. Here are some examples. The only basis on which a social system can continue itself is through further communications applying its code. It is an autopoietic system. Meanings which cannot be generated via the application of this code, which includes

16

  Communications provide the basis on which individuals can orientate themselves in response to other – meaningful behaviour. In this sense, they provide relationships between individuals. But this relationship is neither causal nor functional.

Sociology of the legal system  157 observations on reality which cannot be coded, do not register within the system, though they may register within other subsystems which apply their own codes. This means that law, like other systems, has to generate its own version of reality. Whilst systems may use a common language, and this makes the syntax of one system available to another, it does not allow them to reproduce each other’s meanings. For not only are different codes applied, but the connections to other communications will be different. A communication that features within a legal operation will connect to earlier legal communications and project towards future ones, and gain its legal meaning within this sequence. Communications generated within other systems will not link to the same past or future operations. This does not prevent the researcher observing the different ways in which different systems construct their respective versions of reality.17 But it does invite one to approach legal ‘inter-disciplinary studies’ with a modesty as to the ability of law to ‘learn’ in any straightforward manner from science/politics/religion and so on, or to be able to control or direct the operations of different systems. Instead of control, one finds stable relationships between systems which provide mutual support for their respective operations. Within Parsons, this is termed interpenetration, and is seen as a situation wherein the output of one system is an input for another. For Luhmann there is no input/output relationship between social systems. Each can only construct its own version of the other. However, situations arise where one system anticipates a stable reaction from the other, and this motivates the reiteration of communications that trigger this same reaction. Where two systems react to each other in this way, the situation is called structural coupling. Luhmann describes this as follows: . . . a system presupposes certain features of its environment on an ongoing basis and relies on them structurally . . . What it includes (couples with) is as important as what it excludes. Accordingly the forms of structural coupling reduce and so facilitate influences of the environment on the system. (Luhmann 2004, 382, emphasis in the original)

Gunther Teubner has described this as blind co-evolution (Teubner 1993, 52–3) between social subsystems – a relationship not of control, but of mutual investment in a common semantics – for example, contract (linking the economy and law) and constitutions (linking law and politics). From our research, we would add conviction; linking law and the mass media (Nobles and Schiff 2000, 93–101). More recently Teubner (2012) has explored the potential for these couplings to operate at a global as well as a national level. The premise that social subsystems have to observe the world using their own communications includes their observations on themselves. So not only do subsystems construct their version of the world (their environment), they also construct themselves, which necessarily requires them to distinguish themselves from what they are not. Strictly speaking, a system cannot refer to itself, or its other, separately, since whenever one draws a distinction its meaning is given by the division between what is included and what is excluded. Thus, one should more accurately understand that systems variously focus on one or other side of the distinction self/other. That said, the legal system is a referent of law (namely of law’s communications). From the perspective of the outside observer, the sociological/scientific researcher, this means that there are two versions of the legal system 17

  For a concrete example, see Nobles and Schiff 2004.

158  Research handbook on the sociology of law that can be studied. One can either focus on the legal system as a system that is orientating all its communications through the same code and observe how this differs from the constructions of other systems, in which case everything being observed by the code legal/ illegal is the legal system, or one can observe on how the legal system constructs itself using communications that apply its code – how it observes and describes itself within itself. Taking the second approach produces a sociological understanding of much jurisprudence, including the legal positivist theories referred to at the beginning of this chapter. All systems involve self-observation and, at the most general level, self-descriptions: descriptions of themselves as a unity and totality. From a critical perspective, in the case of law, such observations and descriptions can be described as ideological, rationalisations that fail to capture factors such as interests, classes, loyalties or psychologies which lead to their formulation and reiteration. But one can also look at them functionally, to consider what operations they facilitate that would otherwise need other communications to be executed. And more importantly, what difficulties (social costs) would be involved in their rejection or replacement. In the case of law, the kind of structures that legal positivists identify as the foundations of a legal system are, from this perspective, structures whose meanings facilitate and co-ordinate multiple legal operations. For example, one does not need a consensus on the legitimacy of parliaments in order for law to treat statutes as authorities. Attempts to make legal claims whilst at the same time rejecting the authority of statutes has an understandable social cost – the failure to make a persuasive claim. The authority of statutes is constantly reaffirmed through claims based on them, made by actors whose roles are constructed through them. To reject statutory authority, and still to maintain the complexity of legal communications with their endless technical distinctions, a functional equivalent would need to evolve. This theory has implications for legal pluralism.18 Law is not limited to state law, but operates wherever the code legal/illegal is being used within modern functionally differentiated society (which for Luhmann is world society, which is global). This provides a means to observe transnational law. It also provides reasons why it is problematic to equate law within modern society with the normative systems of non-differentiated (tribal) societies, or the widely shared norms of particular communities within modern society (immigrant communities, scientific communities, religious communities, and so on). In the case of non-differentiated societies, law does not construct its norms separately from those other systems. Within modern society, the norms of these other systems construct their own standards of good/bad, legitimate/illegitimate, and so on, but only within their respectively interconnecting communications.

CRITICISM Roger Cotterrell sees the focus of systems theory on law’s growth as an abstract system, as neglecting the ‘particular forces and interests that give rise to law’s development, inspire its interpretations and guarantee its authority . . .’ (2003, 250). He feels that this approach to law as a system:

18

  For a fuller analysis, see Nobles and Schiff 20012.

Sociology of the legal system  159 . . . has not extensively examined the changing character of the social in concrete terms in relation to law, and it has not indicated how contemporary legal change can be interpreted in the light of social theory. It leaves relatively unexplored the details of the discursive character that it attributes to developed law. And the theory explains little about how autopoietic law will actually respond to what the social may throw up as regulatory problems. Its concern seems only to affirm that law will seek to address these matters always from its own point of view with its own discursive resources. (2006, 23)

Cotterrell’s criticisms raise a crucial question, and one that has implications for both sociological and philosophical attempts to describe law as a system. Is society differentiated into functional subsystems and is law one of those subsystems? If the self-organisation of modern society takes this form, then there are good reasons to observe law’s social environment using a theory which assists one to identify those other subsystems, rather than looking for ‘particular forces and interests that give rise to law’s development’. For then the quoted paragraph is not so much a criticism as a challenge – pointing to research yet to be undertaken into the co-evolution of law and the subsystems in its environment. But does systems theory, with its origins in cybernetics, biology and general systems theory, merely ask us to study law ‘as if’ it was a system? Or does law exist socially as a social subsystem, with the characteristics of systems which systems theory attributes to them? If law is not a system, then using this framework may lead to the loss of information which could be afforded by other approaches (the sociology of professions, critical theory, class analysis, grounded theory, and so on). And, perhaps, most importantly of all, it may lead to fundamental misunderstandings over the compass for human agency within law.

COMPLEXITY THEORY Some recent attempts to apply systems theorising to law have taken these criticisms on board. Rather than approach the legal system as a subsystem of communication which generates itself from its own discursive resources, with human beings outside of what is analysed as parts of systems, human actors are regarded as the units whose interactions produce the system. One such version of systems theorisation is termed complexity theory. It has its theoretical roots in general systems theory, as it has been developed in the natural sciences and mathematics. Whilst there is no single version of complexity theory, nor even a consensus as to what features a complex system will exhibit, the ongoing study of systems within the natural sciences has generated concepts for the observation of complexity which can be applied generally to social phenomena and systems19 and hence to legal phenomena and systems. Complexity theory offers the possibility of directly applying these concepts to whatever the observer identifies as a system: The argument from general systems theory is that we can think of any collection of interacting objects, actors or agents as a ‘system’, and that all systems have certain shared characteristics, whether we are looking at the Solar System or a Criminal Justice System. The objective is to observe, frame and explain the patterned behaviours of objects, actors or agents. (Wheatley 2016, 580)

19

  For background see Byrne 1998.

160  Research handbook on the sociology of law Complexity theory has arisen in response to the difficulty, some would say impossibility, of adequately modelling complex systems. Systems that arise from the collaboration of large numbers of interacting elements, whose interactions involve feedback and non-linear responses, nevertheless produce stable patterns of behaviour. Our most familiar example is the weather, which exhibits sufficient stability to allow for accurate prediction in the short term but, it appears, cannot be reliably predicted over longer periods. Complexity theory offers concepts both to account for how dynamic systems reach near equilibrium states, and how these states may undergo radical and swift changes: Wherever they look, complexity theorists see complex systems, presenting an exciting picture of ceaseless creativity, transformation, order out of chaos, strange attractors, far-from-equilibrium processes, spontaneous self-organisation, non-linearity, emergence, adaptation, and evolution. (Murray, Webb and Wheatley 2019, 5)

If one brings these insights from complexity theory to the study of law as a system (represented by the ubiquitous phrase ‘the legal system’), accepting that law and regulatory regimes constructed through law are complex systems, one has a theoretical justification for a large number of propositions about the nature of law, and the manner in which it should be studied. Complexity theory understands how the structures that stabilise system elements are themselves a result of those elements, which means that order is produced from the bottom up through relationships of attraction, rather than imposed from above through force or hierarchy. In addition, the connectedness of elements, and their sensitivity to their environments, supports the claims of those who question law’s self-presentation as an objective and predictable basis for human judgement, rather than a form of information or communication which takes its meaning from its application, in context, through iteration. Whilst novel and interesting insights can be produced by applying complexity theory to legal phenomena, its status as a sociological approach to research is unclear. Although the concepts of complexity theory may be compatible with autopoietic systems theory, its proponents do not adopt Luhmann’s version of systems theory, nor do they specifically adopt any alternative definition of social systems in order to justify applying complexity theory to what they select as a system in relation to law. This is not to say that this approach cannot be combined with sociological approaches. Indeed, identifying the parts of systems as individual human action echoes Parsons: The social system is . . . made up of the relationships of individuals . . . it is a system which is organized around the problems inherent in or arising from social interaction of a plurality of individual actors . . . (Parson and Shils 1951, 8, as quoted earlier)

However Parsons never claimed that human action was determined by social systems; rather, he regarded social systems as compensation for the limited possibilities of coordinated human behaviour arising through the lack or limitation of the structured intentions of human actors. At the other extreme, theories which seek to account for order in terms of interaction between individual human agents (such as symbolic interactionism and ethnomethodology) are not easily reconciled with theories which account for human behaviour in terms of structures which take the form of systems. This is both a theoretical and an empirical opposition. Whilst Luhmann insisted that systems in the forms he

Sociology of the legal system  161 described are an empirical reality20 those, such as Giddens, who have attempted to explain even global relationships from a starting point of the actions of individual human agents, have doubted the existence of autonomous social subsystems: Social systems should be regarded as widely variable in terms of the degree of ‘systemness’ they display and rarely have the sort of internal unity which may be found in physical and biological systems.21

Which leads us to wonder whether those who apply complexity theory to law are simply acknowledging the dynamic potential of human interaction to transform any social structure, including the legal system, or are they involved in the paradoxical exercise of bringing systems theorising to an object (a social subsystem) whose existence, in many respects, they do not accept.

CONCLUSION Sociological theorising about law is not limited to the application of sociological methods to phenomena generally accepted as legal, or the utilisation of theories which challenge law’s self-presentation, generally accepted by positivist legal theories as a unified system of norms. Systems theory, in its various forms, allows us to explore the possibilities and implications of law’s existence as a system. With Parsons, we are invited to consider the functions which law, as an institution, performs within society. Using Habermas, we can explore law’s role as a mechanism for social integration – a bridge between lifeworld and systems, which exhibits elements of both. With complexity theory, we can explore the implications of the science of complex systems for the relationship between individuals and what, within society, the observer identifies as a system. Lastly, and we would argue most productively, we can draw on Luhmann’s theory of law as one of society’s autopoeitic subsystems. In doing so, one can, if one chooses, treat Cotterrell’s observations (quoted above) not as criticism, but as a challenge, to examine: the changing character of the social in concrete terms in relation to law, and [analyse] . . . how contemporary legal change can be interpreted in the light of [systems] theory . . . [and explore] . . . the details of the discursive character that it attributes to developed law.

In sum, to explore what it means for law (alongside politics, science, education, the economy, and the mass media) to exist as a system. 20   ‘The following considerations assume that there are systems. Thus they do not begin with epistemological doubt. They also do not advocate a “purely analytical relevance” for systems theory. The most narrow interpretation of systems theory as a mere method of analysing reality is deliberately avoided . . . in systems theory . . . [scientific statements] refer to the real world. Thus the concept of system refers to something that is in reality a system and thereby incurs the responsibility of testing its statements against reality.’ (1995, 12) 21   Note, however, Giddens’ definition of systems: ‘The patterning of social relations across time-space understood as reproduced practices.’ With this wide definition, the claim that only a small number of social systems approximate to biological ones does not exclude the possibility that the legal system is one that does (1984, 377)

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REFERENCES Bredemeier, Harry C. 1962. ‘Law as an Integrative Mechanism’. In William M. Evan (ed). Law and Sociology: Exploratory Essays. New York: Free Press of Glencoe, 73–88. Byrne, David. 1998. Complexity Theory and the Social Sciences: An Introduction. Abingdon: Routledge. Cotterrell, Roger. 2003. The Politics of Jurisprudence. 3rd edition. Oxford: Oxford University Press. Cotterrell, Roger. 2006. Law, Culture and Society: Legal Ideas in the Mirror of Social theory. Aldershot: Ashgate. Giddens, Anthony. 1984. The Constitution of Society: Outline of the Theory of Stucturation. Cambridge: Polity Press. Gordon, Robert. 1984. ‘Critical Legal Histories’. Stanford Law Review 36(1/2), 57–125. Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Translated by William Rehg. Cambridge: Polity Press. Hart, Herbert L.A. 1961. The Concept of Law. Oxford: Clarendon Press. 2nd ed. 1994. Oxford: Oxford University Press. Joas, Hans and Wolfgang Knöbl. 2009. Social Theory: Twenty Introductory Lectures. Translated by Alex Skinner. Cambridge: Cambridge University Press. Kelsen, Hans. 1945. General Theory of Law and State. Translated by Anders Wedberg. Cambridge, MA: Harvard University Press. Kelsen, Hans. 1967. Pure Theory of Law. Translated by Max Knight. Berkley, CA: University of California Press. Luhmann, Niklas. 1993. ‘The Code of the Moral’. Cardozo Law Review 14, 995–1009. Luhmann, Niklas. 1995. Social Systems. Translated by John Bednarz, Jr. Stanford, CA: Stanford University Press. Luhmann, Niklas. 2004. Law as a Social System. Translated by Klaus A. Ziegert. Oxford: Oxford University Press. Macauley, Stewart. 1963. ‘Non-Contractual Relations in Business: A Preliminary Study’. American Sociological Review 28(1), 55–67. Merton, Robert K. 1968. Social Theory and Social Structure. Enlarged edition. New York: Free Press. Murray, Jamie, Thomas Webb and Steven Wheatley. 2019. ‘Encountering Law’s Complexity’. In Jamie Murray, Thomas Webb and Steven Wheatley (eds). Complexity Theory and Law: Mapping an Emergent Jurisprudence. Abingdon: Routledge. Chapter 1. Nobles, Richard and David Schiff. 2000. Understanding Miscarriages of Justice: Law, the Media and the Inevitability of Crisis. Oxford: Oxford University Press. Nobles, Richard and David Schiff. 2004. ‘A Story of Miscarriage: Law in the Media’. Journal of Law and Society 31(2), 221–44. Nobles, Richard and David Schiff. 2012. ‘Using Systems Theory to Study Legal Pluralism: What Could be Gained?’ Law & Society Review 46(2), 265–96. Parsons, Talcott. 1951. The Social System. London: Routledge. Parsons, Talcott. 1959. ‘Jurisdiction’. In Leon H. Mayhew (ed). Talcott Parsons on Institutions and Social Evolution. Chicago: University of Chicago, Chapter 12. Parsons, Talcott. 1962. ‘The Law and Social Control’. In William M. Evan (ed). Law and Sociology: Exploratory Essays. New York: Free Press of Glencoe. 56–72. Parsons, Talcott. 1964. ‘A Sociologist Looks at the Legal Profession’. In Talcott Parsons (ed). Essays in Sociological Theory. New York: Free Press of Glencoe. Chapter XVIII. Parsons, Talcott. 1977. ‘Law as an Intellectual Stepchild’. Sociological Inquiry 47(3–4), 11–58. Parsons, Talcott and Edward A. Shils. 1951. Toward a General Theory of Action. Cambridge, MA: Harvard University Press. Raz, Joseph. 1980. The Concept of a Legal System: An Introduction to the Theory of the Legal System. 2nd ed. Oxford: Clarendon Press. Rehg, William. 1996. ‘Translator’s Introduction’. In Jürgen Habermas (ed). Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Translated by William Rehg. Cambridge: Polity Press, ix-xxxvii. Teubner, Gunther. 1993. Law as an Autopoietic System. Translated by Anne Bankowska and Ruth Adler. Oxford: Blackwell. Teubner, Gunther. 2012. Constitutional Fragments: Societal Constitutionalism and Globalization. Translated by Gareth Norbury. Oxford: Oxford University Press. Wheatley, Steven. 2016. ‘The Emergence of New States in International Law: The Insights from Complexity Theory’. Chinese Journal of International Law 15(3), 579–606.

13. Sociology of legal consciousness and hegemony Patricia Ewick and Susan Silbey

INTRODUCTION The law is one of the most enduring of social institutions. Although particular rules change and the organization of roles evolve, the basic legal form remains. To the law, communities delegate the legitimate use of force to resolve conflicts, prohibiting citizens from using violence to manage differences while reserving for the enforcement agencies this exclusive power. The ‘rule of law’ carries with it exactly this aspiration to confine the use of violence – to confine the field of pain and death – through complex processes of interpretation and decision (Cover 1986). For thousands of years, the tomes of legal writing have regulated the times, places and conditions for the uses of state sanctioned violence/force allocated by a third-party decision maker through adversarial processes (Bobbio 1965, Holmes 1887). Socio-legal research on legal consciousness attempts to explain this long-lived institutional durability. What, in other words, sustains this institution? Current events may belie the law’s claim to the legitimate monopoly of violence. Daily news reports are saturated with accounts of pain and death: massacres of diners in Parisian cafes, of children in elementary schools, of workers in public welfare offices, of peasants plowing fields, of native and mercenary armies in continual punctuated battle, all accompanied by one or another assertion of just, legitimate cause for what appears to be illegal violence. Whether we are living in a time of actually greater violence is unclear. After all, nearly ten times as many people died every single day for six years in World War II as died in the one day of the World Trade Center attacks of 11 September 2001. However, it is clear that force outside of the state, until recently, has not been normatively sanctioned across large swaths of the globe. The increasing use of urban terror as a political strategy begs us to reconsider the durability and power of law as institution and aspiration. Imagine, for a moment, how we might think about legal consciousness as a theoretical concept as well as social fact if, following 11 September 2001, George W. Bush had announced that, rather than making war on Iraq and Afghanistan, the United States was going to hunt down the perpetrators of the World Trade Center attack and bring them to trial before the International Criminal Court in the Hague? What would the world be like now? Both contemporary terrorism and the rule of law are sustained in no small measure by ideological commitments. We begin this essay by coupling the interests and conceptual terms of socio-legal studies on legal consciousness to the horrific events of our historical moment in order to emphasize the role of ideology in shaping not only the broad contours of history, but also the minute events of everyday life. Indeed, our research on legal consciousness began with a focus on ideology as a counterbalance to narrowly behavioral accounts of legal processes. As a theoretical concept and topic of empirical research,

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164  Research handbook on the sociology of law legal consciousness developed among socio-legal scholars to explain how law sustains its institutional power across wide spans of time, space and variable performance; yet, increasingly, legal consciousness is used to refer to actors’ thoughts, ideas and actions with respect to law (McCann and March 1995). We have, in other words, been looking for hegemony in all the wrong places. Empirical studies of legal consciousness characteristically collect information about how people talk and use (or not talk or not use) law. The field developed by first moving socio-legal research from formal legal settings, where both the official and unofficial work of official legal actors were the focus of study, to the activities of ordinary citizens as they interacted with formal organizations and actors. A second move took place as scholars began to track the ways in which law and legal schemas were present in the words, actions and interpretations of ordinary citizens outside of interactions with legal agents or official settings. Researchers attended to the unofficial, non-professional actors – citizens and legal laymen – as they took account of, anticipated, imagined, or failed to imagine legal acts and ideas. In making this move, this research shifted empirical focus from a preoccupation with both formally legal actors and legal materials to what had in sociological theory been designated as the life-world, the everyday life of ordinary people. For the most part, but not entirely, researchers were foregoing a focus on measurable behavior and reinvigorating the Weberian conception of social action by including analyses of the meanings and interpretive communication of social transactions. From this perspective, law is not merely an instrument or tool working on social relations, but is also a set of conceptual categories and schema that help construct, communicate and interpret social relations, even where law might seem distant or formally absent. Importantly, and perhaps most fundamentally, the turn to everyday life and the cultural meanings of social action demanded a willingness to shift from the native categories of actors as the object of study; for example, the rules of the state, the formal institutions of law and the activities within official legal settings to the analytic concept legal consciousness – that is, how legality is an ongoing structure of social action (Ewick and Silbey 1998, 33–56). European social theory had been addressing similar questions with the concepts of consciousness, ideology and hegemony in an effort to understand how systems of domination are not only tolerated but embraced by subordinate populations (Marx and Engels 1970 [1846]; Gramsci 1971). Along the way, however, the research field split. The empirical data collection – observing and interviewing people in various settings to trace the ways in which law was present, or not, in their activities – was similar across the field, but the analysis of the data and the questions addressed altered. Once the data was collected, the words of informants were analyzed and interpreted differently. For some researchers, the informants’ accounts were indicators of ordinary citizens’ attitudes and perceptions of law; signs about the ways in which law was relevant or irrelevant for their lives. For others, for example Ewick and Silbey, informants’ accounts of their experiences were used to depict (by constructing a model of) a particular social structure, which we call legality. We found that embedded in informants’ accounts were cultural schemas – not exclusively associated with law – describing law and legality as both a universal, ahistorical norm of disinterested decisionmaking and, at the same time, a set of particular, pragmatic and malleable procedures open to manipulation by skilled, self-interested and resourceful actors. The durability of

Sociology of legal consciousness and hegemony  165 law, we argued, derived from this schematic plaiting, enabling diverse and contradictory experiences and interpretations to be contained within commonly circulating conceptions and meanings of law. In other words, while it is true that researchers in both camps collect signs of legal consciousness by observing social actors thinking, doing and talking, legal consciousness – defined as participation in the production of legal meanings – cannot be reduced to these actions, thoughts or words. In the remaining sections of this chapter, we first address the two paths of legal consciousness research: one stream relying on the actor as the unit of analysis and the explanation, the other focusing on the institution, synthesizing across the diverse empirical accounts to model the structure of legality. We animate this discussion with some recent critiques concerning the role of collectivities as productive sites of legal consciousness, offering examples from current research to illustrate the importance of site-specific studies. We then focus on points of contestation and confusion concerning the meanings of consciousness, ideology and hegemony. In the final section, we identify more recent work mapping the relations among social fields, capitals and habitus to better address the fundamental question of how the multitude of interactions that form everyday life come to assume the unity and consistency we recognize as a social structure and as a durable institution.

LEGAL CONSCIOUSNESS REDUX: COLLECTIVITIES AND INSTITUTIONAL CONTEXTS One must not think ill of the paradox, for the paradox is the passion of thought, and the thinker without the paradox is like the lover without passion: a paltry mediocrity. But the highest pitch of every passion is always to will its own downfall, and so it is also the ultimate passion of Reason to seek the collision, although in one way or another the collision must become its downfall. (Kierkegaard 1962, 46)

Socio-legal scholars, like philosophers, love paradox. Not just the contradictions that demand to be solved like a puzzle, or reconciled by logic; for, as Kierkegaard notes, that would be the end of passion. We love the paradox that does not need explaining because it does the explaining, is the explanation. Foucault gave us the prison that produces the delinquent. Marx identified the contradictions inherent in capitalism as the engine of history. These are different kinds of paradoxes because they are not produced by contradictions that exist between two distinct things (ideas, systems, possibilities) that collide; rather they inhere within one thing, indeed they constitute the thing. In some cases, the internal contradictions are destabilizing and thus a source of change or crisis. According to Marx, the internal contradictions of capital would finally lead to revolution; for psychologists, cognitive contradiction or ‘dissonance’ is eventually harmonized, as thought or action are, by seeking alignment. In other cases, the internal contradictions operate in countervailing opposition, creating a tensile stability. Some cultural narratives describe law as both God and gimmick, and that this duality is a source of law’s durability. Because meaning and sense making are dynamic, internal contradictions, oppositions and gaps are not weaknesses or tears in an ideological cloth. On the contrary, an ideology is sustainable only through such internal contradictions. These contradictions become

166  Research handbook on the sociology of law the bases for the invocations, reworkings, applications and transpositions through which structures are enacted in daily life. In short, contradictions and oppositions underwrite everyday ideological engagements, and thus ensure an ideology’s vitality and potency (Ewick and Silbey 1998, 226). We arrived at this understanding by mobilizing a familiar tool box of sociological concepts and theories, relying heavily on the Chicago School ethnographers and the twentieth century canon of American qualitative sociology, as well as social construction (see, for example, Berger and Luckman 1966; Garfinkel 1967). We also read the French sociologists, Crozier, Foucault, Bourdieu, Lefevre and de Certeau, directing us to the capillaries of social action within which power and institutional authority acts/travels. Like many social scientists of our generation, we were preoccupied with questions of agency and structure, struggling to understand how these capillaries animate recognizable patterns of social action that persist over time and yet consistently alter and change. What sustains institutions over the long duree? We were heavily influenced by William Sewell’s (1992) reconciliation of Bourdieu and Giddens, ultimately relying on Sewell’s theory of social structure as schemas and resources enacted in the most improvisational as well as organized transactions for our theorization of legal consciousness. With these resources in hand, we went about collecting stories of life experiences from over four hundred people to identify the circulating schemas with which people make sense of their lives to themselves and to others. We used conventional methods of qualitative data analysis, thematically coding and recoding the transcribed interviews with inductively emergent codes/categories as well as themes derived from the abundant empirical research in socio-legal studies. We asked ourselves, as any empirical researcher should, does our data confirm what has already been demonstrated? In what ways, can we validate previous research? Where do we find variation? What do we observe that others may not have identified as yet? Our first question for organizing all the coded data was simple: what do people talk about when they talk about law, explicitly, elliptically and metaphorically? To organize the coded data, we relied on the fundamental basic concepts of sociological analysis with which we began: norm (what normative claim is offered for law/legality); structure (what constrains legal action); capacity or agency (what enables legal action); and where is legality located in time and space. Importantly, we used these basic concepts to develop the matrix of the schemas of law and legality, thus representing how the institution is experienced and interpreted. The object of analysis is the institution of law or, as we argue, the social structure of legality, not the person; whom, we observed with rare exception, would deploy multiple, even contradictory, schemas. As many critics have noted, however, we did not systematically analyze the conditions – group memberships or social locations – generating or associated with the individual accounts from which the narrative model of legality was built (Nielson 2004). We have also noted this as a general failure in the field. By failing to systematically explore and analyze the structural and institutional grounds of people’s lives and work, empirical studies of legal consciousness have not yet completed the ostensible goal to explain legal hegemony. Legal consciousness research insufficiently combines culture with structural aspects of the world (Silbey 2005). By inadequately appreciating structural relations beyond cultural discourse, we have left a good part of the task undone. Specifically, why in any given social space, some discourses are more likely than others:

Sociology of legal consciousness and hegemony  167 In constructing an account of legal hegemony, it would be foolish to deny experiential, material differences in social spaces and lives. The central theoretical issue is not whether the conditions of our lives vary, but whether the cultural terms with which we understand and communicate, and with which we constitute our lives, can be correlated with concrete inequalities. Legal consciousness should not be understood in relation to external power and internal will, but in relation to the material inequality of our social life and the cultural terms of our understanding. (Silbey 2005, 359)

Recent work argues that by collecting data through interviews with a randomly selected sample of individuals we did not pay attention to the role of social movements and organizations in shaping experiences and interpretations. This work is fruitfully focusing on the situational and institutional fields within in which legality is narrated and enacted. This scholarship has also considered the importance of collective actors – particularly challenging groups – in confronting legal hegemony (Blackstone, Uggen, McLaughlin 2009; Fritsvold 2009; Halliday and Morgan 2013). Focusing on radical environmental activists, for instance, Halliday and Morgan examine the collective voices of dissent. They base their analysis on Mary Douglas’s grid/ group theory of culture. Douglas’s formulation offers a generalized two by two matrix for characterizing actor’s interpretations – she calls them attitudes – of their social position and orientations toward justice and the allocation of blame. One axis, the grid dimension, describes variation in authority; whether hierarchy is embraced on the basis of traditional rules and roles or rejected by emphasizing substantive equality. The second axis, the group dimension, describes variation in agency; whether social action is more likely driven by individual actors or constrained by groups. By relying on Douglas’s culture theory to analyze legal consciousness, Halliday and Morgan describe, as Douglas intends, the attitudes of actors not the structure of an institution. In other words, how do actors’ interpretations vary along these dimensions of hierarchy and agency? While Douglas uses the grid/group model to identify attachment to basic variations in social ordering (‘a bid for space, time and resources for a particular form of social organization’), Halliday and Morgan use the grid/group matrix to situate the before, with and against schemas/narratives of legal consciousness, identifying in the process a blank cell in Douglas’s four-four typology. Halliday and Morgan conclude that there is a fourth type of legal consciousness which rejects rather than extols, plays with or subversively resists the law. Halliday and Morgan show that this cell can be occupied by radical environmental activists. Through a secondary data analysis of interviews with activists, they describe what they call a collective rejection of the authority of state law. The activists also voiced conceptions of transcendental, universal law, (which they opposed to what they saw as illegitimate state law) while simultaneously employing the strategic gaming potential of state law. Rather than see these contradictory views as sustaining law’s hegemonic power – as we argue – they claim that the disparate views of law fueled the activists critique and challenge. Following Douglas’ model of typologizing actors’ interpretations and claims for social ordering, Halliday and Morgan ask how the actors they study interpret the role of actors and social groups within the institution, rather than how the institution performs its roles. The object and unit of analysis is the social actor. In characterizing types of legal consciousness among dissenting collectivities, Halliday and Morgan end up treating the social actor (albeit a collective one) as the focus of analysis (as the ‘bearer of a legal consciousness’) rather than the processes of ideological formation.

168  Research handbook on the sociology of law Although the critique is well taken and the effort a step forward, the work still commits the individualistic fallacy. Rather than conceive of legal consciousness as participation in a collective and emergent process, people and groups are said, in this line of research, to ‘have’ a particular type of consciousness. In her study of offensive public speech, for instance, Nielson also reports that people think such speech is morally wrong, and yet they do not favor legal limitations. She explains the apparent contradiction: ‘The answer lies in varieties of legal consciousness: that is, differing attitudes about the law.’ Some respondents, she goes on, ‘hold staunch Frist Amendment ideals. Others distrust the state. Still others are unwilling to be defined as victims . . .’ (2005, 9). More recently, in his study of radical environmental activists, Fritsvold states, ‘This research seeks to investigate the role of civil disobedience and law-breaking within the environmental movement and the corresponding legal consciousness of movement actors’ (Fritsvold 2009, emphasis added). In sum, these rich, complex and provocative pieces of research show how the varieties of legal consciousness are distributed among different social actors, but not how they coalesce in the social structure of legality, a Bourdieuian habitus (Bourdieu 1977). This research shows how law is used or not used, but does not move to the question of how these variations may be entwined, sustaining legal institutions over time. We assume some responsibility for this tendency for legal consciousness to be conceived of as a property (or orientation) of actors rather than an analytically constructed model of circulating tropes, schemas and narratives. The metaphors of before, with and against the law, which we used to label the schemas suggested that the actor sits before, plays with or experiences herself up against the law. Describing the data this way, and the term consciousness itself, generating entailments of cognition and subjectivity, invites such a distortion of the concept. While there is nothing inherently wrong with these typologies of legal consciousness as a heuristic, they nonetheless end up creating bounded, non-overlapping, and relatively homogeneous categories. They sort and label and thus tend to flatten or erase the emergent relationship between and among that which the bounded cells contain. Most importantly, by treating the variety of expressions as types of legal consciousness, the research converts a process into a static snapshot. One of the theoretical casualties of this typology heuristic is precisely the loss of that tensile relationship and paradox among (and within) the cultural schema that are, we have argued, the source and engine of law’s hegemony of social change as well as stability (Ewick and Silbey 2002). The contribution of recent work lies not, therefore, in identifying yet another narrative of legality; rather, by focusing on group interactions within local settings, such work promises to reveal more about the collective processes through which law and legality are constructed. In other words, if legal consciousness is talked and acted into existence, this will always occur within groups who are simultaneously situated in multiple domains of meaning. This collective constitution occurs in work and professional groups, families, schools, prisons; indeed, throughout social life, as well as through popular culture that homogenizes across disparate settings. We therefore need to be attentive to the ways in which groups provide a medium and resource for constructing legality and, as importantly, at what point these constructions sustain or undermine the ideological power of law. These questions suggest that our accounts of legal consciousness would vary considerably if data were collected from actors embedded in social settings with strong normative orders. We might amend, or confirm, our model of legal consciousness if we studied actors located in highly organized settings where legal norms, tropes and schemas compete with

Sociology of legal consciousness and hegemony  169 (or complement) equally compelling normative orders, more characteristic of modern rather than postmodern cultural production in mass media which encourages homogenized schemas and interpretations. Our current research projects – an ethnographic study of Voice of the Faithful (Ewick and Steinberg 2014) and an ethnography of how one university responded to enforcement of environmental regulations – seek to capture the ways in which these circumscribed social settings and social groups process legality. Case: Voice of the Faithful On Sunday, 6 January 2002 the Boston Globe’s ‘Spotlight’ investigative team published the first of a series of extensive reports on the archdiocese cover up of sexual abuse by priests under the banner headlines, ‘Church Allowed Abuse by Priest For Years, Aware of Geoghan Record, Archdiocese Still Shuttled Him From Parish to Parish’ (France 2004, 296). Almost immediately following these revelations, a group of faithful and shocked Catholics formed a group to respond to the crisis. Within months the group they called Voice of the Faithful (VOTF) counted in the tens of thousands. Their formation represented the collision of longstanding norms of obedience, deference to hierarchy, presumptions of ecclesiastic immunity and distrust of secular law with American and modernist commitments to the individual conscience, liberty and democracy. Caught between their loyalty to the Church and their sense of being empowered citizens, they faced a discursive field that was not well structured. The Globe framed the Geoghan story in terms of criminal and civil legal violations and dark organizational malfeasance. But when they engaged in public discussions, the group struggled with how to fashion a collective voice that framed the injustice. Modern law, it would seem, belongs to the secular, rational world of the empirical, the material, the individual; religious law emanates from the transcendental sphere of faith, the sacred and the collective (Fitzpatrick 2007). Within civil society most of the members of VOTF are highly educated, professional adults, but were relatively powerless and voiceless within the Church; one of the oldest, richest and culturally most powerful hierarchies in the world. Much of the literature on the legal consciousness of highly religious or traditional groups and communities has demonstrated the apparent tension between secular and sacred authority in a particularly acute way (Engel 1987; Greenhouse 1986). In her study of Baptists of Hopewell, for instance, Carol Greenhouse reported a reluctance or unwillingness to rely on law to define or settle conflicts insofar as doing so would entail conceding to the profane authority. Their resistance, she wrote, ‘. . . is rooted in the logic of sacredness that obviates not only applications of human authority, but human authority itself’ (206). By contrast, for members of St. X VOTF, the sacred and profane are shifting and overlapping realms of meaning and action. Within their repertoires of strategy, discourses and identity, we found plaited references to law and religion, to reason and faith. Rather than oppositional or competing, the secular and the sacred are interwoven throughout their activism, each enabling one another, and in doing so challenging the familiar binary between the sacred and the profane. On one hand, members of St. X VOTF, in describing their own experiences within the group, invoke the language of faith and traditions of Catholicism. Participating in the activities of VOTF – and thus assuming the costs, sacrifices and public disapproval that

170  Research handbook on the sociology of law such participation entails – is variously described as ‘a calling’, ‘a cross they have to bear’, and having been ‘inspired by the Holy Spirit’. At the same time the members of VOTF interpret their activism as divinely inspired, they are firmly rooted in the pragmatic world of reason, politics and law. In their search to become ‘citizens’ of the Church, they readily acknowledge the utility and power of secular law. Like the media, the legal system offers VOTF activists and victims an institutional authority powerful enough to challenge the Church. And from the onset of the scandal, the law figured prominently in strategies of the group. When asked to reflect on the role of the legal system in exposing the pattern of sexual crimes and institutional cover up, Thomas, a strong supporter of survivors who has attended a weekly vigil in front of the Cathedral for the past six years, observed: None of this would have happened without Constance Sweeney [Superior Court judge who ordered the Archdiocese of Boston to release information related to sealed settlements to the Boston Globe] – one single judge – ordering the release of the documents. We never would have known the extent of what was going on, for that we can thank our common law system.

In addition to using legal authority to prise open incriminating Church records, legal change remains a central objective of VOTF nationally and at the affiliate level. Some members engaged in lobbying legislators to pass laws – such as extending or eliminating the statute of limitations for sexual assault, removing charitable immunity in civil awards, and securing mandated financial accountability – that would prevent future abuses from occurring. Yet, given the role of courts in instigating the scandal and the continuing level of legal activism among VOTF, the frequency with which members employ explicit discourses of rights or justice is rare. Indeed, unless we explicitly probed members about their view of law in the context of the Church scandal, or their own effort to reform the Church, few people mention it spontaneously. Generally, legal language is not used to frame their claims or anchor their identities as Catholics or activists. It would be a mistake, however, to interpret the infrequency with which the problems within the Church, or their own activism, are framed within explicitly legal discourse as a rejection of law’s presence, legitimacy or power. As socio-legal research has repeatedly shown, most people do not typically experience their lives, relationships or even disputes as principally legal events (Engel and Munger 2003; Ewick and Silbey 1997; Nielsen 2004). Where legality is present, it is often liberally interwoven with alternative discourses, such as religion (Ewick and Silbey 1997), science (Silbey and Ewick 2003), and family (Hartog 1993). Indeed, it is out of this fashioning that both law and these other institutional discourses are mutually constituted in an ongoing dynamic of application and transformation. Among the VOTF, for instance, while there has been only occasional use of rights language, it is sometimes heard in the least expected contexts. For instance, during a discussion of the Church’s refusal to authorize lay Catholics to perform certain liturgical rites, one member of the group asserted that without including lay ministers, in the face of a severe shortage of priests, his ‘right to receive the Eucharist’ would be compromised, thus framing his challenge to clerical authority in the apposite roles of rights bearing citizen and devoted penitent. Indeed, for the members of St. X VOTF, secular law and sacred faith are not experienced or understood to be separate realms of meaning as they pursue justice.

Sociology of legal consciousness and hegemony  171 Case: Governing Green Laboratories For more than a decade Silbey has been studying the ways in which legal regulations have been incorporated within laboratory science. This is a study of law entering the house of science rather than science and scientific objects, such as evidence or invention, entering the house of law. The work began, quite directly, in response to criticisms leveled at The Common Place of Law (Ewick and Silbey 1998). One voice of criticism suggested that we were wasting our time studying ordinary people, that the world is made by elites and that if we wanted to understand how the law worked, as we claimed, we ought to study elites. This criticism challenged, without engaging, the theoretically driven focus on the role of the masses, ‘we the people’, in sustaining legal systems. Provoked by this naïve conception of social ordering and the role of elites, Silbey decided to study a different kind of elite, cognitive elites: laboratory scientists. In looking at laboratory scientists she would be studying one of the most insulated, protected and privileged populations in modern society. To what degree was the work of laboratory scientists influenced by legal mandates; to what degree did legal norms concerning safety, health, environmental protection penetrate and shape laboratory routines; what role did the law have, or not have, in the design of scientific experiments? The results have been dribbling out for some years. With regard to questions of legal consciousness, what stories do scientists tell about law that might confirm or alter the model of legality we constructed? For the most part, scientists tell stories not unfamiliar to readers of The Common Place of Law. For the most part, legal norms are irrelevant other than as licenses enabling the legitimate use of animals in experiments or hazardous materials (for example, toxins and radioactive materials). Those rules are legitimate because, in large measure, they have been made with the collaboration of the scientists themselves. When the rules intrude beyond what the scientists consider reasonable and in the public’s interest, they may engage to change them or their implementation, and sometimes actively ignore them. As this work has developed, however, the analysis of laboratory regulation has transformed from a study of legal consciousness into a study of complex organizations with long chains of distributed expert labor. Rather than law governing science, rather than an analysis scientists’ interpretations into models of legal consciousness, it is a story of the intersection of two recent trends. In the first, organizations are increasingly adopting forms of self-regulation in response to multiple, often competing, demands for accountability from consumers, investors, competitors, employees and the government through law. Risks are proliferating as expectations for risk reduction and accountability also escalate. At the same time, the conventional model of a hierarchically governed organization reliably commanding compliance – which has always been more an aspiration than an empirical description – is also disappearing, even as an aspiration. Across almost all economic sectors, organizations are adopting decentralized, flexible, and ostensibly lean structures alongside various forms of offshoring, outsourcing and short-term employment relations. Through the diffusion of these two fashions in private firms and public agencies, the state is, in effect, delegating responsibility to promote the general welfare to organizations that operationally lack the capacity to do this well. Considering the rapid diffusion of increasingly complex technologically generated risks it is a recipe for disaster, which is exactly what has happened in the deaths and maiming in university laboratories in California, Texas and New York; the 2010 BP oil spill in the Gulf of Mexico; the 2014

172  Research handbook on the sociology of law anthrax contamination at the Centers for Disease Control; the 2014 lapses in presidential security; and the September 2014 death from the Ebola virus at a Dallas hospital. Some observers would also add the financial collapse of 2008 as just such a disaster borne of systemic risks bred in contemporary organizational practices. It is less a story of law within a particular intersection of institutional forces than a study of a new social formation, a dominant model for the organization of labor and the erosion of accountability. Nonetheless, legality is hegemonically present in this particular intersection of institutional forces. Although many scientific workers recognize no legal constraints on what they do, laboratories are saturated with law; signs of law are everywhere, in the safety showers outside every lab, on the biohazard signs adorning every door, on the notices of laser and radiation dangers, of the demand to wear both protection in coats and eyeglasses, in the presence and design of vents, drains and sinks, as well as the locations and labels for hazardous waste. The labs are filled with law: legal facts, remedies, strategies and institutions are constantly present. However, the scientific mind and sensibility is not determined by law. Scientists may bargain in the shadow of law, yet the law in whose shadow they bargain is a complex and contradictory structure, experienced as an external control and constraint, reconstructed regularly in conversations and arguments, intertwined in significant tension with scientific knowledge and professional norms.

LEGAL CONSCIOUSNESS AND HEGEMONY These two projects show that precisely because legality is both an embedded and an emergent feature of social life, it collaborates with other social structures (in these cases religion and science) to infuse meaning while enabling and constraining social action. Furthermore, because of this collaboration of structures (science and religion), law may be present in many instances, although subordinate. To recognize the presence of law in everyday life is not, therefore, to claim any necessarily overwhelming power for law or legality in any particular institutional field; the dynamics would likely vary and demand specification. It does suggest, however, that law’s durability derives from its overlay with other domains of meaning and thus its ideological availability. An ideology always represents particular arrangements of power, and affects life chances in a manner that is different from some other ideology or arrangement of power or social field. Meanings can be said to be ideological only insofar as they serve power. Ideologies vary, however, in the degree to which they are contested, conventionalized or institutionalized. Thus, ideology and hegemony can be understood as the ends of a continuum of representations that serve power. At one end of the continuum are the still visible and active struggles referred to as ideology. At the other end are the struggles that are no longer active, where power is dispersed through social structures and meanings so embedded that representational and institutional struggles are no longer visible. We refer to this as hegemony. Although moments of resistance may be documented, in general subjects do not notice, question or make claims against hegemony. Just as ideology and hegemony constitute the poles of a continuum of the seen and unseen, contest and convention, norm and deviance, social knowledge and experience vary along a continuum of variable processes of awareness and critique of the forms and structures as well as the openings and possibilities of everyday lives.

Sociology of legal consciousness and hegemony  173 To appreciate these links among consciousness, ideology and hegemony, it bears noting that Gramsci’s use of the word ‘consenso’ in of his discussion of hegemony, from which we and many others draw inspiration, has generated considerable confusion. Many scholars, relying on different translations, use the term ‘consensus’ rather than ‘consent’ in discussing hegemony; a noun rather than verb. This semantic replacement is not trivial, it implies a vastly different process through which power is secured. Consensus suggests a process in which information is exchanged and considered, and some degree of ‘agreement’ [or lack thereof] is reached among the interacting parties. While such processes certainly do occur, in every interaction there is a prior, and largely unacknowledged, realm of meaning that grounds the communicative and deliberative processes. This grounding for collective participation raises the spectre of a dominant hegemony emergent within taken for granted, intersubjective meanings. ‘[C]onvergence of belief or attitude or its absence presupposes a common formulation that can be opposed’, Charles Taylor writes. Like Durkheim’s concept of a social fact, this intersubjective realm of meaning – while observable in the thoughts and actions of individual actors – is not reducible to any individual actor. Taylor writes, ‘When we speak of consensus we speak of beliefs and values which could be the property of a single person, or many, or all; but intersubjective meanings could not be the property of a single person because they are rooted in social practice’ (Taylor 1971, 351). More importantly for our argument here, dissensus itself is rooted in ideas, language and values that are themselves rarely contested, and often are the ground upon which challenges are constructed. Gramsci’s use of the word consenso refers to this non-reducible realm of meaning, rather than to the consensus or dissensus that it enables. The point is that even in cases of contest – regarding what is law or what are legitimate uses of law – consent may be present insofar as the conflict entails an acceptance of the fundamental categories of thought that make the expression of dissensus possible. The environmental dissidents studied by Fritsvold (2009) and Halliday and Morgan (2013), for instance, invoked law’s own claim of transcendence in asserting the righteousness of their cause; in other words, their commitment to the idea of a transcendent, just law underwrote their activism as much as their cynicism about the law as a game. To further unpack this distinction, consider two different versions of hegemony. In one account, a dominant hegemonic ideology persuades ‘subordinate groups to believe actively in the values that explain and justify their own subordination’ (Scott 1990, 72). As a consequence, they readily comply with laws, rules and regulations that more powerful groups enact to sustain and enhance the powerful groups’ interests. A different version suggests that hegemony achieves law abidingness and conformity through ‘non-violent forms of control exercised through the whole range of dominant cultural institutions and social practices, from schooling, museums and political parties to religious practice, architectural forms, and the mass media’ (Mitchell 1990, 553). In the first account, subordinates provide consent, the version of consenso we are rejecting; in the second, compliance and resignation are sufficient. The growing body of literature on legal consciousness suggests that the first, consenting version of hegemony, is untenable as a model of the ways in which legal ideology enacts power. Empirical socio-legal research describes complex interactions between the law and compliance to law, which has never been total nor complete. Not only does law make provision for its own violation, but cynicism about the neutrality and majesty of law has persisted alongside

174  Research handbook on the sociology of law grandiose claims for its transcendent legitimacy, as the studies of environmental activists beautifully illustrate. The ‘resigned compliance’ version of hegemony, more commonly deployed in sociolegal scholarship, recognizes that conflict and resistance are consistent with the existence of a dominant hegemony. All that is required is that the order of things seem inevitable. ‘A degree of distaste for, or even hatred of, the domination experienced’ is not incompatible with hegemony in this sense, in which neither agreement, consensus nor harmony is necessary. ‘The claim is not that one’s fated condition is loved, only that it is here to stay whether one likes it or not’ (Scott 1990, 75). Sociologists sometimes describe what we are referring to as hegemony when they speak of the sedimentation and institutionalization of structures of everyday life. Giddens, for example, talks about ‘the naturalization of the present’, in which existing socioeconomic arrangements, especially those that have existed for several generations and centuries, come to be taken for granted (1979, 195). And Bourdieu describes how ‘every established order tends to produce (to very different degrees and with very different means) the naturalization of its own arbitrariness’ (1977, 164). Thus, when law is understood as a hegemonic phenomenon (in contrast to contested ideology), it refers to this ability to inscribe arbitrary and varied cultural forms with the aura of the natural and inevitable. Ideologies, even when contested, can be said to distort and mystify experience, to falsely portray unity, and to conceal class relations. But it is not ‘the truth’ – an immutable natural reality knowable through positivist science – that is concealed. Rather, law in its ideological and hegemonic capacities masks the possibilities of alternative understandings and accounts of social relations. By suppressing alternative interpretations, ideologies also deny that they are themselves creations. In short, neither ideology nor hegemony announce themselves as such. For example, the ideologies of economic growth, meritocracy, competitive individualism, desert and fairness simultaneously construct and deny systems of structured inequality. Therapeutic professionalism, founded on the rhetoric of diagnosis and intervention, denies its role in creating pathologies of mind and body it then seeks to treat. Hegemonic ideologies, even in the version that assumes only resigned compliance rather than active agreement and consensus, may not merely naturalize the social world, but may encourage subordinates to believe that current arrangements are just; that is, the justice that is possible. What is perceived as is becomes what ought to be, ‘necessity becomes virtue’ (Scott 1990, 76). Imagining an alternative system becomes not only difficult, not only undesirable, but undesired. Even though serfs, peasants and other widely subordinated groups are regularly imagining alternative worlds, hegemony may nonetheless persist. The resistant imaginings of peasant farmers that Scott (1990, 80) describes from his fieldwork merely upend – only in imagination – the system of subordination in which the peasants struggle. Those peasants’ imagined revolutions do not question the inevitability of stratification and inequality, merely their own subordinate location (misplacement) in a world of purportedly inevitable and apparently natural inequality. Thus, in this example of peasants’ imagined revolutions, the notions of inequality and stratification are hegemonic. In contrast to the peasants’ embrace of hegemonic inequality, Fritsvold and Halliday and Morgan’s accounts of dissident environmentalists offer signs of emergent counter-hegemonic ideology in the degree to which they reject the ways in which state law naturalizes the exploitation and commodification of the earth.

Sociology of legal consciousness and hegemony  175

CONCLUSIONS In sum, legal consciousness is not a trait of social actors nor solely ideational; it is a type of collective social practice reflecting and forming social structures. Legal consciousness is a reciprocal process in which the meanings given by social actors (both individual and collective) to their world become patterned, stabilized and objectified. These meanings, once institutionalized, become part of the material and discursive systems that limit and constrain future meaning making. By virtue of being institutionalized, these systems are resilient, but not invulnerable to critique and change. The ‘non-reducible realm of meaning’ should be the focus of legal consciousness research. But, as we have already noted, it needs to be tied more tightly to the resources that invest interpretive schemas with ‘their power generating capacity’ (Ewick and Silbey 1998, 41). A recent paper by Young and Billings does exactly this. By taking up the criticisms leveled at legal consciousness, Young and Billings (2020) move studies of legal consciousness closer toward its original ambition. Specifically, they begin the work of developing both structural sources and constraints that generate and sustain the legal constructions of ordinary citizens, moving beyond the limits of merely discourse analysis – which is where we stopped in The Common Place of Law (1998). By adopting one of Bourdieu’s concepts – cultural capital – Young and Billings address three overlapping and non-linear methodological levels joining Bourdieu’s concepts of fields, capitals and habitus (Bourdieu ad Waquant 1992). With five vignettes of police work, they address the juridical field and the objective organization of agents in the field; they tie the social positions of the actors by associating cultural capital to social class positions; and, they begin to build the legal habitus by showing the pattern of interpretations of citizens’ interactions with the police through aggregate concepts of trust, futility and entitlement. The paper identifies a path forward for studies of legal consciousness by focusing more on ‘the law’, doctrine and social conditions beyond just the linguistic constructions. In conclusion, legal consciousness can be understood as the meanings persons attach to legal phenomena, and may be differentially distributed among populations to form taxonomies. Legal consciousness may also be understood as the processes of participating in the constitution of the social structure of legality. As participation in the constitution of legality, the meanings attributed to legal phenomena would not constitute types of consciousness, but would provide empirical evidence of the circulating schemas that can be organized to reveal a polyvocal, yet durable, entity, institution or social structure of legality. It is time to move forward, recapturing and renewing the critical edge for studies of legal consciousness.

REFERENCES Berger, Peter and Thomas Luckman. 1966. The Social Construction of Reality: A Treatise in the Sociology of Knowledge. Garden City, NY: Anchor Books. Blackstone, Amy, Christopher Uggens and Heather McLaughlin. 2009. ‘Legal Consciousness and Responses to Sexual Harassment’. Law & Society Review 43(3), 631–68. Bobbio, Noberto. 1965. ‘Law and Force’. The Monist 49(3), 321–41. Bourdieu, Pierre. 1977. Outline of a Theory of Practice. Translated by Richard Nice. New York: Cambridge University Press.

176  Research handbook on the sociology of law Bourdieu, Pierre and Loic Wacquant. 1992. An Invitation to Reflexive Sociology. Chicago, IL: University of Chicago Press. Cover, Robert M. 1986. ‘Violence and the Word’. Yale Law Journal 95(8), 1601–29. Engel, David M. 1987. ‘Law, Time and Community’. Law & Society Review 21, 605–38. Engel, David M. and Frank Munger. 2003. Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities. Chicago, IL: University of Chicago Press. Ewick, Patricia and Susan Silbey. 1998. The Common Place of Law: Stories from Everyday Life. Chicago, IL: University of Chicago Press. Ewick, Patricia and Susan Silbey. 2002. ‘The Structure of Legality: The Cultural Contradictions of Social Institutions’. In Robert A. Kagan, Martin Krygier and Kenneth Winston (eds). Legality and Community: On the Intellectual Legacy of Philip Selznick. Berkeley, CA: University of California Press, 149–65. Ewick, Patricia and Susan Silbey. 2003. ‘Narrating Social Structure: Stories of Resistance to Legal Authority’. American Journal of Sociology 108(6), 1328–72. Ewick, Patricia and Marc Steinberg. 2014. ‘The Dilemmas of Social Movement Identity: The Case of Voice of the Faithful’. Mobilization: An International Quarterly 19(2), 209–27. Ewick, Patricia and Marc Steinberg. 2019. Beyond Betrayal: The Priest Sex Abuse Scandal, the Voice of the Faithful, and the Process of Collective Identity. Chicago, IL: University of Chicago Press. Fitzpatrick, Peter. 2007. ‘What are the Gods to Us Now?: Secular Theology and the Modernity of Law’. Theoretical Inquiries in Law 8, 161–90. France, David. 2004. Our Fathers: The Secret Life of the Catholic Church in an Age of Scandal. New York: Broadway. Fritsvold, Erik D. 2009. ‘Under the Law: Legal Consciousness and Radical Environmental Activism’. Law and Social Inquiry 34, 799–824. Garfinkel. 1967. Studies in Ethnomethodology. Englewood Cliffs, NJ: Prentice-Hall. Giddens, Anthony. 1979. Central Problems in Social Theory. Berkeley and Los Angeles: University of California Press. Gramsci, Antonio. 1971. Selections from the Prison Notebooks. Edited and translated by Quentin Hoare and Geoffrey Nowell Smith. New York: International Publishers. Greenhouse, Carol. 1986. Praying for Justice: Faith, Order and Community in an American Town. Ithaca, NY: Cornell University Press. Halliday, Simon and Bronwen Morgan. 2013. ‘I Fought the Law and the Law Won? Legal Consciousness and the Critical Imagination’. Current Legal Problems 66, 1–32. Holmes, Oliver Wendell, Jr. 1887. ‘The Path of the Law’. Harvard Law Review, 457. Kierkegaard, Soren. 1962. Philosophical Fragments. Translated by David Swenson. Princeton, NJ: Princeton University Press. Marx, Karl and Friedrich Engels. 2002 [1848]. Manifesto of the Communist Party. Government Collection: WorldLibrary.org [online]. Available from: http://online.kottakkalfarookcollege.edu.in:8001/jspui/bitstream/123456789/640/1/marx-communist-109.pdf McCann, Michael and Terry March. 1995. ‘Law and Everyday Forms of Resistance: A Socio-politico Assessment’. Studies in Law, Politics, and Society 15, 207–36. Mitchell, Timothy. 1990. ‘Everyday Metaphors of Power’. Theory and Society 19, 545–78. Nielsen, Laura Beth. 2005. License to Harass: Law, Hierarchy and Offensive Public Speech. Princeton, NJ: Princeton University Press. Scott, James. 1990. Domination and the Arts of Resistance: Hidden Transcripts. New Haven, CT: Yale University Press. Sewell, William. 1992. ‘A Theory of Structure: Duality, Agency and Transformation’. American Journal of Sociology 98(1), 1–29. Silbey, Susan S. 2005. ‘After Legal Consciousness’. Annual Review of Law and Social Science 1, 323–68. Taylor, Charles. 1971. ‘Interpretation and the Science of Man’. The Review of Metaphysics 25, 3–51.

14.  Sociology of legal subjectivity Pierre Guibentif

The argument of this chapter is that a specific concept of ‘legal subjectivity’ should be recognized as an indispensable piece of sociology of law’s theoretical tool kit, and that it should designate for the discipline, in its current state of development, a priority research domain. The definition of that specific concept has to start with a terminological point. In sociolegal texts, we find mentions both of ‘subjectivity’ and of ‘legal subjectivity’. The noun ‘subjectivity’ has here two very different meanings. Alone, the word means the reflexive consciousness of a human individual and suggests the density and uniqueness of its contents (Santos 1991; Barron 1998). Coupled with the adjective ‘legal’, it often means the fact of having the quality of a – legal – subject (Broekman 1986; Kersten 2017; Bernardini 2018). This second meaning differs radically from the first. Indeed, the legal subject is conceived not as a reality with a substance, but in merely formal terms, as an entity – which does not even need to be a human being (Boyle 1991, 521) – entitled to acquire rights and to endorse obligations. And it shares this quality with all other legal subjects, which makes subjectivity in this second meaning just the reverse of something unique. Given the tension between these two meanings, no wonder that the phrase ‘legal subjectivity’ is sometimes given a meaning conditioned by the substantial notion of subjectivity. This meaning now has to be specified. Therefore, the characteristics of subjectivity in the substantial sense of the word have to be considered. They oblige us to reject a meaning deriving from a literary understanding of the phrase ‘legal subjectivity’. It makes no sense to designate some subjectivities as legal, as opposed to others admittedly non-legal. Indeed, law is conceived as a differentiated social domain in which individuals participate only as far as they participate in legal operations. Under these conditions, the idea of a subjectivity, as an instance in which a person experiences her/his unity, which would be entirely legal, is not acceptable. According to our way of using the adjective ‘legal’, ‘legal subjectivity’ could have one other meaning: it could designate a part of that substantial reality. In the consciousness that a human individual develops about her/himself, the phrase ‘legal subjectivity’ would designate only the part that has to do with the law. Such a concept, however, requires two specifications. A first specification is demanded by a characteristic of the consciousness which is the stuff of subjectivity: heterogeneity, dispersion, discontinuity. In the face of such a medium, one hardly can set stable divides, so it seems highly questionable to speak about an identifiable ‘legal part’ of it. More acceptable is the following assumption: within the undifferentiated and fluid medium of an individual mind, it is possible to find, for moments and according to the circumstances, reflections that include legal references; the challenge is to better scrutinize these moments, their occurrence and their place in the broad context of the thoughts one may have about her/himself. ‘Legal subjectivity’ qualifies in this sense a subjectivity that is likely to refer, at least occasionally, to the law, and that deserves to be inquired with the aim to appreciate the relevance of those references. 177

178  Research handbook on the sociology of law A second specification is suggested by our disciplinary background. In the approach of subjectivity, we have focused up to now on the psychic aspect of that reality. We cannot forget, however, that the concept also has a societal aspect. The psychic activity of an individual is also a topic of communication between her/him and others, or between third persons. This is what happens, for instance, when we, sociologists of the law, discuss the ‘subjectivity’ of judges, jurors, public servants, and so on.1 Just as subjectivity in general, what we called here ‘legal subjectivity’ should be approached with consideration of these two dimensions: thoughts of individuals about their position in the world, in which references to the law have a certain relevance; and communication about these thoughts where legal references play a certain role. In defence of a research programme giving priority to legal subjectivity, it is worth, in a first step, remembering the issues which did dominate the debates in sociology of law throughout its recent history, and how, if it is the case, legal subjectivity in the sense here defined has been approached in the context of these issues. As we will see, when this topic is mentioned, it often is in critical terms. So we will have, in a second step, to review these critiques, which may provide a valuable guideline at the moment we intend to formulate a research programme. Taking advantage of the lessons of the discipline’s development, we will then be in a condition to come back to the concept of legal subjectivity, and to develop it in more operational terms.

LEGAL SUBJECTIVITY APPROACHED IN THE CONTEXT OF THE MAIN RECENT SOCIO-LEGAL DEBATES At the beginning of the period in which sociology of law established itself as a specialized subdiscipline of sociology, from the 1960s on the main topic was the concern about law as an instrument of government. After a first period of intense worldwide governmental activity aimed at reconstructing peaceful and productive societies, it appeared necessary to develop detailed information, backed by adequate research, about the effectiveness of law as a governance tool, and about the society upon which this tool was to be applied. Since law impacts on society through the acts of its individual addressees, individuals were approached in the research of that period, but the focus was on the individual attitudes toward the law in particular (Lista 1995, 154). A second topic reached the top of the agenda of the discipline in the late sixties: the critique of the way law participates in the establishment of power relations. Here, again, due to the influence of Marxist conceptual schemes, the level of analysis is one of large societal aggregates: classes, differentiated social domains and ideologies. Subjectivity, in particular legal subjectivity, appears in this context as an element of the dominant ideology which, by attributing apparent forces to the individuals, contributes to the obscuring of the real power relations (Knieper 1982, 117). In the course of these critical debates, the operation of the power devices in which the law participates deserved a more

1

  Third possible meaning of the concept of legal subjectivity: the subjectivity of legal agents in the accomplishment of their function. This is a research topic in sociology of law (Edlin 2016; Liu 2018; Meakin 2019), which will not be further discussed in the present chapter.

Sociology of legal subjectivity  179 detailed analysis, which tackled at a certain moment the level of the individuals addressed by them. Michel Foucault argued that modern power devices target individuals in their self-perception, generating a certain type of subjectivity (Foucault [1975] 1977). Thereby, the topic of legal subjectivity explicitly entered our domain; approached, however, in the specific context of a radical critique of the power mechanisms of modern society (Rose 1999; Gowan 2012). A topic that dominates in a third period could be the legal system itself. Both the work on the means of government, and on the critique of power relations, proved necessary to better focus research on the legal component of power mechanisms. In the 1980s several works tackling legal reality as whole were published and discussed (Bourdieu [1986] 1987; Teubner [1989] 1993). Two debates developed, nurtured by this intensified discussion about the characteristics of law in the late modernity. One takes up again the classical topic of legal pluralism. The attention toward the official legal system stimulates, as its counterpart, an increasing attention toward normative phenomena outside of it (Belley 1986). The other gives emphasis to the changes that take place within the law at that time, as well as within other social domains. To give appropriate expression to these profound changes, the law is called ‘post-modern’ (Boyle 1991). The strong emphasis on the legal system and its transformation, or on realities competing with it, led research to limit the discussion of individual experience to situations more directly linked to the law (Lista 1995, 172). In a fourth period during the 1990s, socio-legal debates were strongly conditioned by the ongoing processes of Europeanization and globalization that followed the collapse of the Soviet Union (Teubner 1997, 769). In the context of research into new forms of legal pluralism favoured by globalisation, one paper on sociology of law put forward the hypothesis according to which individuals would lose their societal relevance in a world where the real players are large organisations (Belley 2002, 159). One of the main topics of discussion throughout the last two decades was what could be called the law of the dominated. Important streams of research were inspired by feminist studies and post-colonial studies (Morris 2006; Cranny-Francis 2013; Dirth 2019), and gender studies (Phillips 2000; Uhlmann 2004; Cottier 2006; Facioli 2012; Kochanowski 2014). This brought subjectivity back to the forefront. The emphasis, however, is on the critique of a certain notion of legal subjectivity implicitly designed to fit the experience of the white male (Collier 1998). In the very last years, conditions seem to exist that are likely to favour the approach of legal subjectivity as a research domain of its own. To a significant extent, the discussion of the legal experience of dominated social categories did pave the way to this evolution (Wallbank 1995; Shin 2006). Three additional factors may have played a role. Firstly, individual experience has become a major topic in sociology in general, a shift that had consequences at the theoretical level, with the defence of conceptual schemes likely to frame empirical research addressing specifically the individual experience (Archer 2003). Secondly, in sociology of law there is an increasing interest in the topic of constitutions. A central component of constitutions are the mechanisms of inclusion of the citizens in the political functioning of the state (Thornhill 2011, 19, 374), which implies a notion of citizenship that requires, in turn, a certain notion of legal subjectivity in the sense here defended. Thirdly, the very recent interest in legal algorithms and artificial intelligence (Hyden in the present volume) makes it necessary to compare legal operations conducted

180  Research handbook on the sociology of law by machines and those conducted by human beings, which requires an in-depth discussion of what it implies for social processes to take place in connection with the functioning of human minds.

CRITIQUE OF RESEARCH ADDRESSING (LEGAL) SUBJECTIVITY The first critique influences sociological scholarship since Durkheim: sociology should concentrate on social facts, leaving psychical facts to psychologists. This option cannot be maintained in the long run. Social reality is connected to psychical processes, and at some moment the study of both has to be articulated. It may be an articulation between different disciplines, but it requires the disciplines involved to develop concepts facilitating the cooperation (Cominelli 2018, 39). Such concepts are those which address the places where psychic and social processes do somehow touch each other. As already mentioned, subjectivity – legal subjectivity – is one of them. Subjectivity, being at the same time a topic of individual perception and reflection and a topic of communication couples societal and psychical processes. According to this conceptual scheme, the main task for sociology would be to inquire into the communications about individual psychic processes, while psychology would focus on the mental processes. However, there is narrow correspondence between societal and mental processes. The study of such correspondence requires at least a partial effort, from both sides, to take in the actual process of research facts into account that belong to the domain of the other discipline. A second critique is the one related to the Marxist analysis of society. The legal subjectivity designed by modern law, based on the concept of legal subjects entitled with rights, which warrant them freedom and allow them to freely conclude contracts, is qualified as an illusion. The idea of legal subjectivity is said to obscure, to a significant extent, the fact that most human agents are under the massive pressure of control and exploitation mechanisms. Indeed, extreme inequalities in the conditions in which rights are perceived and exercised exist, and have to be carefully studied.2 Even under these conditions, however, the knowledge of the law and of one’s rights may give the people some action potential, in many cases very modest, but that deserves to be better analysed and measured. Foucault himself, who formulated a sophisticated version of this critique – the legal subjectivity generated by legal mechanisms creates subjects who participate in the control of themselves (Sato 2013; Kochanowski 2014) – admitted, in Discipline and Punish (Foucault [1975] 1977), that in all power relations the weaker force is a force too, by which the subject resists or even fights (Collinson 1994; Shin 2006; McNay 2009). Research developed on legal experiences of discriminated social groups, as well as inspired by a post-colonial agenda, points to the fact that a certain notion of legal subjectivity is linked to a very specific context (Cottier 2006). The assumption underlying this critique deserves to be fully accepted and to be used as a starting point in research on legal subjectivity. Indeed, subjectivity as well as legal subjectivity should not be approached as

2   See researches showing how certain social categories are excluded from the exercise of subjectivity (Barron 1998; Ariza 2009).

Sociology of legal subjectivity  181 universal categories. There are many ways for groups to identify their members, and for individuals to locate themselves as individuals in such groups. The aim is to reconstruct this variety through detailed empirical work. It seems plausible, however, that in certain societies a certain form of subjectivity has been consistently encouraged by different social mechanisms; among them, in societies of the late modernity, schools, the media and offers in the consumers’ market. So, the analysis of accounts of subjectivities should be linked to the one of the mechanisms favouring certain features of subjectivity. Another criticism addressed to research on legal subjectivity points to what has been called the ‘individualistic fallacy’ (Ewick and Silbey, in the present volume): it would give too much value to the individual, thus corresponding to the hyper-individualistic features of our social world today, which would be detrimental to the reconstruction of the mechanism warranting the integration of society (Supiot 2005, 29). This criticism, however, underestimates the relevance of an insufficiently analysed feature of modern societies: they recognize rights to the individuals, not only for the sake of the freedom of the individuals, but on the basis of the historical experience that freedom may be an incentive for productive contributions to society, and a condition for the creativity of this production. In this sense, to study legal subjectivity is not to ignore the mechanisms of societal integration but, on the contrary, to analyse a sophisticated component of such mechanisms.3 The main conclusion to be drawn from this criticism is that sociology of legal subjectivity has to be conceived as just one part of a broad strategy of understanding the social reality and the role of law in it. One way of designing such a strategy could be to analyse social change as resulting from the combination of organized, aggregated and individual forces, while the study of the legal subjectivity addresses the third of these three types of force (Guibentif 2020).

DEVELOPING AN OPERATIONAL CONCEPT OF LEGAL SUBJECTIVITY A consequence of the terminological clarification that introduced this chapter is that the concept of ‘legal subjectivity’ must be discussed against the background of the broader concept of ‘subjectivity’, discussing for each different point in the definition of that broader concept how the more specific issue of ‘legal subjectivity’ could be dealt with. One possible way for organizing this discussion is to distinguish external from internal specifications. Subjectivity is often defined with reference to realities that are external to it. In the first place, there are admittedly different types of subjectivities, according to historical periods or to different geographical regions of the world (Fiske 2000; Ariza 2009). One question to find out is, ‘to what extent these differences are due to the legal component of the subjectivities?’ Indeed, it has been defended that a strong legal component could be a characteristic of a type of subjectivity to be met in the north western part of the world.

3   This is exactly what Honneth ([2011] 2014) does when he studies what he calls social freedom. See also Golder (2011), who speaks about rights as a ‘performative mechanism of community’.

182  Research handbook on the sociology of law Secondly, subjectivity is often linked to certain societal domains, such as the public sphere, the state (Martinez 1995; Lucke 1996; Jean-Klein 2007)4 and, obviously, the law. A more general relationship somehow embraces these different links: the relationship between subjectivity and modernity (Tambe 2004; Mohr 2007). Coupled with the previous point on differences between types of subjectivities, these references to modernity may be translated into the following statement: there is a specific modern type of subjectivity. What about legal subjectivity in this context? In modernity, rights and the law would play in important role in the perception people have of their position in society, which means that modern subjectivity is necessarily, to a certain extent, legal subjectivity. A third external specification of the concept is the following: since subjectivity is recognized to all the members of a community, one issue deserves special attention: the relationship between subjectivities (Pádua 2009; Guenther 2012; Cranny-Francis 2013). Here we meet a special relevance of the legal component of subjectivity. It supplies a detailed representation of the relationship between one ‘subject’ and other people. One central assumption here is that the others have to be recognized as ‘subjects’ too, as bearers of subjectivities with formal characteristics equal to those of the subjectivity of ‘ego’. One question remains; how to identify other components of subjectivity that also may play here a role, and to assess their relevance in relation to the legal component. A fourth external specification of the concept regards the relationship between subjectivity and what has been called ‘corporeality’ (Collier 1998; Arvidsson 2011). The experience of one’s position in society is, in the first place, an experience of one’s body in society; a body which is the instrument of the material acts of the subject, and which often is what other people perceive first from the part of the subject. And the body may be the object of care or treatment provided by others (see in the present volume Krajewska) or, on the contrary, the object of violence exercised by others. Our bodily experiences – be it pleasure or suffering, be it caused by others or not – supply a significant part of what is cognitively processed in order to form our subjectivity. Again, the law plays an important role, in different ways. It confirms the perception of our body as a protected domain, apart from the domain within which things can be exchanged or circulated, and it defines rules prohibiting acts likely to harm the bodies of others, or obliging some people to act when the physical wellbeing of another person is at risk. Concerning the internal specifications of subjectivity, we could distinguish three points: (a) the discussion of the separable inner components of it; (b) of what happens between these components, and; (c) the general interpretations of the processes crossing these two components. (a) A crucial feature of subjectivity is that it combines a societal and a psychical component. As already stated, the existence of a subjectivity presupposes mental processes, the thinking of somebody, in particular thinking about this person her/himself and her/ his relationship to others, as well as societal processes: opportunities for that person, or requirements addressed to her/him, leading her/him to communicate about aspects of

4   When it comes to the state, ‘subjectivity’ is often referred to in close connection with ‘citizenship’ (about this concept, see Griffiths et al. 2016; Blokker in the present volume). The close links between these two concepts would deserve a separate discussion, which cannot be developed within the limits of the present chapter.

Sociology of legal subjectivity  183 this thinking, and for third persons to debate about this thinking. A comprehensive conceptual scheme able to give an account of this duality of processes is Niklas Luhmann’s systems theory, which distinguishes social and psychic systems, approaching both types of systems as emerging realities, generated by concrete actual operations, communication in the case of social systems, perception in the case of psychic systems (Guibentif 2013). Due to the radically different nature of these two types of operations, no direct link can exist between the two types of systems. The functioning of each one is, however, required for the functioning of the other. So there must be modes of coupling between the two types of systems. One type of coupling has been empirically surveyed by Margaret Archer (2003): the ‘internal conversation’. People are able to report that mental experience: their thought sometimes takes the form of a dialogue they have with themselves. The dialogical form of that thought helps to take advantage, in mental processes, of experiences of communication, and it facilitates the communication about mental processes. Subjectivity within this conceptual framework can be qualified as one such mechanism of structural coupling between societal and psychic processes: the reference in communication to one person in particular, as a person who has her/his own thinking, may stimulate the thinking of that person and the focus of that thinking on that communication. It also facilitates the focus of communication on facts and gestures likely to be interpreted as resulting from that thinking and stimulates communication about that thinking:5 What is the place of law in this dual reality? Its place in communication has been well studied by the social sciences: as a result of functional differentiation some discourses are clearly identified as ‘legal’. It is more difficult to identify thoughts as ‘legal’. Certainly, Luhmann’s ‘code’ ‘Recht/Unrecht’, which use is said to distinguish legal communication, can be used in the ‘inner conversation’. Legal professionals, when writing procedural documents, decisions or sentences, certainly will have, for moments, an inner conversation of this sort. The inner conversation, however, is a non-linear and unstable process that merges far less clearly formulated psychic events (perceptions). The many material and semantic artefacts that help differentiate a legal text from other texts have no equivalent in individual minds. Functional differentiation of perception, if it is possible for moments, probably requires strongly differentiated corresponding communication, likely to stimulate internal conversations sufficiently explicit and consistent to generate temporarily what could be called psychic differentiation. (b) Subjectivity has been related to agency and to power (Archer 2003, 342). Taking the above introduced dual analysis as a starting point; agency may be analysed as a dynamic that crosses the divide between perception and communication. This ‘crossing’ the divide may be observed in the form of correspondences between operations taking place in different domains (i), and it suggests the hypothesis of a reality not reducible to a mere set of such operations (ii): (i) What enables us to say that ‘something happened’, that there is some agency? If we analyse it in some detail, we will find a combination of operations taking place in different domains, which correspond to each other. Here, a piece of literature may offer an example. In the novel The Maias by the Portuguese author Eça de Queiroz, a

5

  For comparable reasoning applied to the notion of person, see Luhmann (1995, 153).

184  Research handbook on the sociology of law crucial moment is the occasion of a public literary contest taking place at the end of the nineteenth century in monarchic Portugal; the successful recitation by a poet of an ode to democracy (Eça de Queiroz [1888] 2007, 584 ff., 610). What convinces the reader about the fact that something important happened – an event – is the conjunction of a literary achievement, a political positioning, a successful scenic performance, and an intense psychic contention. Differentiation between domains participate in the generation of the event and its dynamics in two ways. On the one hand, the differentiation of specific domains makes possible certain types of operations likely to participate in the generation of forces; for example, the existence of a literary field makes it possible to produce pieces likely to generate reactions from readers. On the other hand, the difference between domains makes it possible to experience something which is not a simple addition, but a reciprocal irritation of processes of a different kind. To come back to the law, something happens in the legal domain if there are correspondences between legal processes and processes of another kind: economic, political and academic, as well as processes in the individual minds of the people involved. Among other mechanisms, the recognition of individual rights is likely to favour correspondences between psychic processes triggered by experiences of injustice (Cominelli 2018, 18) and political as well as legal processes. (ii) The analysis of situations like the one above described allows the identification of a set of elementary moments that are somehow combined in the experience of an event. What remains to be explained is how it comes that these many elements are experienced as forming a kind of unity: an event. One way – even if not the only one – to approach such processes, taking into account this experience of unity, is to interpret them as revealing, or possibly moderating or amplifying, a force that would be a phenomenon of its own, crossing the operations of the different domains concerned. Here I would like to carefully put forward the following reasoning: perhaps it is time to go beyond the assumption defended in the early works of Michel Foucault, quoted by Přibáň (2018, 36), which invites us to pay attention to the mechanisms that generate and condition the detail of our activities, and which analysis has been neglected due to an existentialist emphasis on the subject’s quest for authenticity. Combining it with the research on the differentiated operations that form the societal fabric of action, here shortly introduced under (i), it could be now worth trying to come back to forces likely to participate, across the differentiated domains of operation, in the generation of agency, and which could be named life. The hypothesis is that living beings are driven by mechanisms that encourage living activity. In somehow more concrete terms, life – in processes taking place in a world where communication and consciousness have been differentiated – as processes distinct from biological processes could reveal itself in the following concatenation: moments in which the living being experiences itself as living are memorized as worthy of being repeated; this memory facilitates the perception or anticipation of situations likely to offer that experience; this anticipation gives a certain action, likely to bring about that situation, its momentum. To bring the law back in this reasoning, it may be considered as one mechanism among others that help memorize and communicate expectations of situations anticipated as offering to a certain person a sensation of living or, in more trivial terms, the expectation of a certain satisfaction. And thereby it is likely to give momentum to certain acts. Analysing legal reality on the basis of this reasoning, it is possible to identify two different types of living experiences protected by the law: on the one hand, experiencing

Sociology of legal subjectivity  185 oneself as a living being, while surviving, growing, moving and so on; on the other hand, experiencing oneself as a unique living being in specific activities. This brings us back to subjectivity. It may now be redefined as a means of anticipating, evaluating and qualifying individual experiences, both in the thoughts of the interested person and in the communication between her/him and others, as experiences of the subject’s uniqueness; in other terms, experiences of self-actualization. And, as such, it may be a driver of individual actions. Components of the law recognizing the expectation of living as a living being are: the prohibitions of violence; rules allowing movements and activities, in particular activities aiming at collecting what is necessary for one’s survival; and rules obliging some people to take care of others (Krajewska in this volume). Founding more complex mechanisms, rules recognizing the relevance of structures likely to maintain certain human groupings should also be mentioned here. As far as the components of the law recognizing the expectation of a certain person to experience her/himself as unique, two categories can be distinguished. On the one hand, there are rules directly recognizing the right of a person to act in a way that provides him or her the experience of being unique in a certain way. It is what could be called cultural liberty: freedom of expression and the freedom recognized to artistic or scientific activities. Liberties likely to be qualified as political, such as the liberty of association, are also to be mentioned here (agency rights: Guibentif 2019). Obviously, the experience of being unique is also protected by the author’s copyright (Barron 1998; Meese 2018). On the other hand, there are the rules establishing means, likely to be acquired by individuals to implement their personal projects, by recognizing private property and institutionalizing money as a means of acquiring and transmitting property. (c) One way of interpreting the evolution of the modern society, and of the law which is part of it, is to consider it as a process throughout which subjectivity: first – of some talented individuals and later on of all persons – is recognized in an increasingly detailed fashion, while individual subjectivities, first of a minority of artists, scientists, jurists or merchants, later on, at least in programmatic terms, of the generality of citizens – are taken as an essential productive resource for human collectivities.6 A resource nurtured both by psychic processes encouraged by the appeal of the experience oneself may have of feeling her/himself unique at certain moments, and by the communication about such experiences. Thereby, subjectivity, as a combination of psychic and communication processes, has the potential of generating dynamics likely to bring about change both within the mental domain, and in the ‘world out there’ shared with other individuals with whom the subject cooperates or struggles. What is likely to give consistency to such change and to establish a causality between the ideas of a person and certain facts – while the reality of the concerned processes is difficult to analyse, and precise links of causality difficult to establish – is, as Hannah Arendt notes, the speech about the acts ([1958] 2002, 213), in other terms narratives. Indeed, modern subjectivity is challenged to produce a discourse about the person, a discourse that shows both that the person evolves in time, and that he/she

6   For a justification of this historical approach to individual subjectivity, based on a discussion of the history of the word ‘critique’, see Guibentif (forthcoming).

186  Research handbook on the sociology of law made some things happen in her/his environment. This is exactly what gives its stuff, in particular, to the modern novel, the Bildungsroman. In the context of this reasoning, the study of legal subjectivity is, at the first level, the study of how, in the self-perception of a person, certain elements, perceived and communicated, may allow the formulation of projective narratives, which are likely to generate expectations of self-actualization, that is forces, and thereby, to switch to another terminology, to empower this person, or, contrarily, hinder the formulation of such narratives and disempower people; or else, as a combination of both mechanisms, yield ambivalent effects. At a second level, the study of what may be the role of the perception of law and one’s own legal status in the generation of these effects (Cottier 2006, 235f.; Arndt 2015). Empirically, this should be developed on three lines. Firstly, actual subjective experiences may be reconstructed by the direct observation of communication processes (Shon 2000; Arndt 2015), and by interviews, which may be part of a biographical method (Cownie 2015). Their effects may be reconstructed by the analysis of documents or cultural products (televisions series, Cranny-Francis 2013). Secondly, the research on actual experiences has to be linked to research on the societal mechanisms that favour expressions of subjectivities, among them legal procedures (Cottier 2006; Nasir 2016; Krajewska and Cahill-O’Callaghan 2020). Thirdly, researches on subjective experiences of the law nowadays have to be combined with researches about the historical development of modern subjectivity. Particularly inspiring here could be the works started by Michel Foucault and Pierre Bourdieu – in particular with his work on scholastic reason (Bourdieu [1997] 2000) – Niklas Luhmann (1989), in particular in his books about the evolutionary processes leading to our contemporary complex societies and Jürgen Habermas (2019) (most directly in his last work), as well as, in a radically different approach, tackling not just the social conditions of human activities but directly agency as such (Hannah Arendt ([1958] 2002). Research carried out on these three lines could enable us to detect and qualify recent developments in this domain, in particular the emergence of a new type of subjectivity, the ‘entrepreneurial self’, and to participate in the debate about the societal consequences of its generalization (Scharff 2016; Bowsher 2020). It is crucial for sociology of law to intensify research on these issues. Indeed, these changes occur in particular at the level of the individual relationship to the law. On the other hand, they also have an impact on the scientific domain. Sociology of law, by researching these issues, participates in the effort of science to appreciate the conditions of its own continuation. And, by taking legal subjectivity, which means modern subjectivity as characterized by components conditioned by differentiated specialized knowledges, as a concept orienting this work, it enables itself to take advantage of, as research material, what is experienced nowadays in the scientific domain itself, by scientific subjectivities.

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15.  Sociology of legal temporalities Lyana Francot

In a society where change appears to be the only constant, time is of the utmost importance to keep track of all actual changes. Even though time is ubiquitous, it is also experienced as precious. Even more so in a society ruled by speed and obsessed with efficiency and progress; time is increasingly turning into a scarce commodity. This goes unabridged for modern law. According to Luhmann, law as a social system is geared towards solving a time problem, a Zeitproblem (Luhmann 1993, 125). Essentially, law is a way of managing time and, like all managerial action, it can be more or less successful, efficient, effective and so on. Law is a fundamentally temporalized system (Khan 2009, 56–57; Luhmann 1993, 126 ff.). In criminal law, for example, general and specific deterrence are references to the future. Procedural law has a retrospective aspect whereas constitutions, on the other hand, are predominantly prospective. In the current era, characterized by an increased awareness of time as a problem, the temporal dimension of law gains momentum once again a fruitful subject in the sociology and theory of law (for example: Přibáň 2007; Beynon-Jones and Grabham 2019; Corrias and Francot 2018; Francot and Mommers 2016). In itself, the observation that law is riddled with many temporal aspects already offers an abundance of attractive starting points for an analysis of the temporal dimension of law. It also invites the question of what can be gained from a sociology of legal temporality. Empirically, this endeavor could, for example, inform us about how different legal systems or parts thereof use, abuse and waste time, for example in migration issues or matters of adjudication (Nelken 2004; Nelken 2008; Benda-Beckman 2014). In a more general sense, an inquiry into legal temporalities informs us about the differences between legal time and the timelines of other systems, such as politics, economy and so. This also sheds a light upon problems of synchronization, in terms of limitations and possibilities in a fast changing societal environment (Rosa 2018). From a fundamental perspective, a sociology of legal temporality also triggers a reconsideration of the function of the law vis-à-vis a highly contingent social order. This requires an inquiry into the relationship between law and society, along the temporal dimension, and more specifically into the time differential between law and society. The issues presented in this chapter do not constitute an exhaustive list. This chapter, rather, presents a selection of starting points for a socio-theoretical inquiry into legal temporalities. After a brief introduction into the concepts of time and temporality, I turn to the importance of the temporal dimension for the legal system. One of the distinctive features of modern law is its temporal autonomy, denoted as the ‘proper time’ of law, or its Eigenzeit. A short discussion shows different ways to map out legal timelines, differentiating between the temporality of the system and temporalities within the system. Next, touching upon the time differential between law and society, the focus is on the legal Eigenzeit as a problem in terms of inertia and slowness. Inertia and slowness are closely connected to legal stability. In an era wherein the future has become a problematic time horizon, stability could turn out to be rigidity. 190

Sociology of legal temporalities  191 A highly uncertain future has its impact on the legal system in other ways too, and can stimulate a new discussion about the purpose and function of law.

TIME A sociology of legal temporality takes its cue from the more general notions of time and temporality (Greenhouse 1989). Time is a complicated phenomenon as well as an indispensable concept. Complicated because we experience time as something that cannot be stopped or escaped from, and it seems to pass without intervention on our behalf (Nowotny 2005, 7). Indispensable as a concept for sociology and social theory because time permeates all sociality. As a consequence, an adequate description of other social phenomena requires, maybe, not a full account, but at the very least a reference to the temporal dimension. In an era in which everything seems to accelerate, the passage of time becomes more difficult to control – despite all planning and scheduling. Societies have devised a wide variety of mechanisms and modes to manage time. Exemplary are many traditions and rituals (Giddens 1994, 62 ff.). One way to deal with time, and presumably the most well-known, is to equal it with chronology: an arrangement of time units like minutes, hours and dates in a linear way, by means of clocks, dates and calendars (Adam 1995, 91). In fact, these are symbols of time that enable the observation and quantification of changes we experience. In this sense, we actually create and construct time ourselves and, as such, constructions may vary depending on the community or society creating them. Time can be conceived of as linear; for example, as an arrow, or cyclic as a repetition of rhythms, or a combination of both (Giddens 1994, 62; Greenhouse 1989, 1634–38; Khan 2009, 61). Basically, time, whatever way it may be construed and observed, contributes to social order. It creates certainty of a specific kind: time enables us to deal with, and therefore reduces, complexity. In a complex society there are too many options to be realized simultaneously. The temporalization of the multitude of options – dealing with one after another – contributes to social order (Luhmann 1993a, 340). Being construed, and not something that merely ‘exists’, time is ‘social time’ (BendaBeckmann 2014; Greenhouse 1989; Nowotny 1992; 2005, 53; Přibáň 2007, 47–8; Cipriani 2013). When understood as a social construction, what time ‘is’ varies and is culturally determined per society. The sociology of time is an expertise of its own and, although instructive for an understanding of legal time, it is beyond the scope of this chapter.1 The above summary, however, already indicates the complexity of both the notion of time and of its discussion. The fact that it is part of social construction allows us to talk about, according to Luhmann, ‘a plurality of Temporalgestalten or of social times’ (Luhmann 1976, 135). Luhmann proposes to define time as a relation between past and future, and so conceptions of past and future become crucial in the constitution of time. Luhmann’s take on time and temporality goes beyond a traditional understanding of temporality in terms of a linear progression of time: past, present and future. In Luhmann, past and

1

  See the work of, for example, Adam 1990; Esposito 2011; Lazar 2019.

192  Research handbook on the sociology of law future are time horizons of the present. As such, we deal with a present past and a present future – in the present, both future and past are given simultaneously (Luhmann 1993b, 111). From this perspective, the present is the distinction between the time horizons past and future (Luhmann 1993b, 113). It is a sophisticated, non-linear understanding of time that aptly complements the complexity of the matter at stake: our construction of time.

LAW AND TIME It follows from the conceptual complexity of time that an inquiry into the connection between time and law is no less of ‘a formidable task’ (Benda-Beckmann 2014, 2). Not only are we confronted with two theoretically challenging notions but, on top of that, with their relationship (Postema 2018). At issue is their complex interplay. In the course of time, law changes, but law also changes time. If time pervades all sociality, then law is not excluded. Law, in its turn, makes use of time: it transforms social time into legal time. A system theoretical informed approach sheds a light on this transformation. Exemplary is Přibáň’s ‘Legal Symbolism – On Law, Time and European Identity’ (2007): The system of positive law can operate only by constituting its internal ‘ephemeral’ temporality. Periods of limitations, time-related legal fictions, the time of law enforcement and enactment, and so on, are all intrinsic to the legal system and constitute its specific concept of time. The internal temporality of law is necessary in order to communicate what is legal and illegal and provide a framework of legal operations. (Přibáň 2007, 48)

For a function system like modern law, the transformation of time is part and parcel of its differentiation process, contributing to the operational autonomy of the legal system. One of the ways to bring about its operational closure is to create a time differential between the system and its societal environment. Other temporalities, like for example those of politics or economics, are excluded. Although a requirement for the differentiation of law, temporal differentiation does not guarantee success if it comes to operational autonomy, as the social and political demand to speed up legal procedures illustrates.2 The issue of legal temporalities can be tackled in different ways. Benda-Beckmann suggests differentiating between temporalities of law and temporalities within law (Benda-Beckmann 2014, 4). The first differentiation targets the temporality of law in its entirety. From a systems theoretical perspective, this concerns the systemic reference law/societal environment and a description of the Eigenzeit of the legal system; that is, the typical time lines and the tempo of law. In fact, this refers to the temporal autonomy of the legal system as a part of its operational autonomy. The temporal autonomy or the legal Eigenzeit denotes that the law itself, and no other system, determines how long the reproduction of legal communication takes: ‘Systems operate in a time proper to themselves’ (Přibáň 2007, 48). In an accelerating society, the legal Eigenzeit is perceived by the societal environment in terms of slowness or inertia. The image of slowness is triggered by how we experience the workings of the legal system; for example, due to

2

  For a discussion of this matter, see for example, Francot and Mommers 2016.

Sociology of legal temporalities  193 the complexity of cases and strategies of lawyers, the ever increasing bureaucracy, slow adaptation of laws to social changes, and legal procedures that often take years to finalize. For the parties involved, such a course of events is frustrating and inexplicable as they are mostly dealing with conflicts of some kind. In general, the parties seek speedy solutions for financial, emotional, security and other issues. Parties involved in a judicial dispute experience a sense of urgency, and if a ruling takes too long – which, understandably from their perspective, often is the case – the parties become impatient and disgruntled. The omnipresence of the temporal dimension in law reveals itself already, but not exclusively at a very fundamental level; that is, in the function of the legal system. The specific legal function seeks to solve a time problem through the stabilization of normative expectations (Luhmann 1993, 125). In this sense, the legal system is time binding (Luhmann 1993, 138). In general, expectations are explicit references to the future and at the same time implicitly take their cue from the past. The past provides us with experiences in which then expectations are rooted. There are two types of expectations, normative and cognitive ones. They differ in the fact that cognitive expectations can be changed when confronted with disappointment, whilst normative ones are maintained. Normativity implies that we can hold out that expectations come (or not) in the future (Luhmann 2008, 343). As that future is uncertain, law offers some relief when it comes to uncertainty by offering legal certainty via stable norms. Stability is one of the core features of law. Exemplary are constitutions. Geared towards the future, the purpose of constitutions is to offer long-term stability pertaining to what a society considers its most fundamental rules. Those rules should not be subject to fast change. Constitutions, therefore, contain rules that usually slow down or complicate their amendment (Kay 2000, 33–4). The second approach suggested by Benda-Beckmann, temporalities within the law, pertains to ‘the specific ways in which rights, obligations, and prohibitions entailed in legal relationships, institutions, and procedures are positioned in time, and the differential ways in which these temporalities affect the outcome of legal procedures and decisions’ (Benda-Beckmann 2014, 4). This second approach relates to the internal differentiation of the legal system into center and periphery; that is adjudication and legislation, the organizational backup of law. Both adjudication and legislation have their own typical temporalities, their own pace: formal procedures in court, times to draft and issue laws, and the entry into force of law. The organizations of the legal system have strict temporal regimes with fixed moments in time: this is the locus where social time indisputably transforms into legal time; here processes become procedures. In its function, modern law may be geared to the future as it generalizes expectations into stable norms, but in its operations and especially in the performances of its core, the judiciary, it is a ‘downstream’ system (Luhmann 1993, 197). This means that these organizations of the legal system operate after the fact and are for the better part-focused on the past rather than on the future. Another informative approach is offered by Wistrich (2012). From his study ‘The Evolving Temporality of Lawmaking’ follows that legal temporalities can be past-oriented or future-oriented. Wistrich argues that law is usually understood as fully past-oriented, a view which he considers to be outdated and an exaggeration (Wistrich 2012, 744 and 752). To corroborate his argument, Wistrich discerns between different methods of lawmaking, including ‘written constitutions, judicial decisions, statutes, treaties, adminis-

194  Research handbook on the sociology of law trative rulemaking, and administrative rulemaking’ (Wistrich 2012, 750). Each method is characterized by a distinct pace and temporal orientation. Wistrich holds that a method is either predominantly future-oriented, like legislation, or predominantly past-oriented, like adjudication (Wistrich 2012, 750 and 773). According to Wistrich, each temporality shows variation along five temporal dimensions: law’s direction, its duration, speed, basis and purpose. The direction of law, the first dimension, indicates whether a law applies retrospectively or prospectively, whereas the second dimension, its duration, refers to how long a law endures. The third dimension, speed, pertains to how long it takes to make a specific law. The basis on which a law is made refers to whether information is obtained from the past or from predictions of the future. The fifth dimension, law’s purpose, might be preserving the past or influencing the future (Wistrich 2012, 750). Combined, these five dimensions determine whether a specific method of lawmaking is either predominantly past- or future-oriented. Based on this analysis, Wistrich argues that the temporality of lawmaking is evolving towards a more and more future-oriented mode (Wistrich 2012). These five temporal dimensions pertain to methods of lawmaking. It would be interesting to research if it was also possible to determine temporal dimensions that enable a description of the Eigenzeit of law as an autopoietic system in terms of predominantly future- or past-orientation.

THE PROBLEMATIC EIGENZEIT OF THE LEGAL SYSTEM The foregoing reveals that the Eigenzeit of the legal system is constituted by a set of fundamental characteristics: modern law consumes time in order to produce legal time; it offers stability vis-à-vis an uncertain future and, at its core; modern law operates predominantly after the fact. The observation that the law has Eigenzeit different from other systemic temporalities and that there are within that Eigenzeit multiple timelines does not yet per se constitute a problem. However, when we confront those characteristic legal timelines with major developments in contemporary society, the picture changes significantly. In doing so, the spotlight moves from legal timelines to the time differential between law and its societal environment. That societal environment is constituted by other systems such as politics, economics, institutions and organizations, but also society as a whole and interactions on a micro level. All these other systems move at their own pace, and that pace will differ, more often than not, from that of the legal system. Especially if we, following Hartmut Rosa, observe sociality in our era as structurally accelerated (Rosa 2013). Several problems then come to the fore: the Eigenzeit of law as a problem for other systems: as a problem for actors seeking justice and, inevitably, as a problem for the legal system itself. Against the background of an accelerating society, the common denominator for these problems is the perception of the Eigenzeit of law in terms of slowness (Francot and Mommers 2016; Francot 2018).3 It follows from the function of the legal system – stabilizing normative expectations – that law seeks to provide stability and (legal) certainty over time. In Wistrich’s terms, this

3   It is in relation to an accelerating environment that legal slowness is problematic. In law itself ‘slowness per se is no failing’ and even more so, ‘a virtue to be aspired . . . ’. (Scheuerman 2004, 83).

Sociology of legal temporalities  195 relates to the temporal dimension of purpose. The stability provided by law is equally an asset and a problem. An asset because it enables social developments within a stable framework, and it turns into a problem when law’s environment keeps speeding up (Rosa 2013; Rosa 2018). In an ever-accelerating environment, stability effectuates slowness. Of course, the perceived slowness of the legal system is nothing new. It is accompanied by its own tradition of complaints (Luhmann 1993, 319; Van Rhee 1997, 57–67). But in the late modern era, the time gap widens due to the structural acceleration of ‘everything’, stretching beyond the socially acceptable and instigating public and political demands to speed up. These demands principally target the organizations of the legal system, especially the judiciary, as the location of the performances of the legal system and the output in the form of rulings. The judiciary is legally obliged to decide as well as being under the pressure socially to do so faster. The urgent request to ‘step it up’ emanates from the societal environment, such as consumers of legal services, politics, public opinion, ‘within’ the judiciary, and its own management (Francot and Mommers 2016, 3). A frequently used argument is that the judicial tempo must match society’s pace so as not to widen the so-called gap between the judiciary and society. This gap is considered to be a source of problems: it is claimed to undermine the trust of citizens in the adjudication and, as a consequence, judicial authority is no longer self-evident. The solution seems all too obvious: to speed up the production of rulings. Of course, there are quite clear drawbacks to this solution, primarily financial ones. And even though such a solution addresses the problem on an organizational level, which might offer some relief, the fundamental issue at stake remains obscured.

LEGAL SLOWNESS AND LEGAL INERTIA The slowness of adjudication is symptomatic for – and this brings us back to – the Eigenzeit of law. That legal Eigenzeit in captured by Khan in terms of temporal inertia. The temporal inertia of law is in line with its function, the stabilization of normative expectations. Norms ensure the systemic stability of law, and are also constitutive of social stability tout court (Khan 2009, 81). Exactly that legal (and democratic) stability has been, and still is, a precondition for the successful structural acceleration of society. However, success comes at a price, or so is suggested by Rosa: we might be forced to continue to accelerate, but now for the sake of preventing decline (Rosa 2013, 16). In such circumstances, successful acceleration is at risk of becoming a threat to its very own preconditions, such as legal and democratic stability. If temporal inertia is indeed a ‘natural’ trait of the legal system, the demand to speed it up and get ‘in tune’ with societal acceleration will not appeal to law. In this respect, Khan states: Law maintains temporal inertia by resisting or refusing to acknowledge changes. . . . This inertia is as much a human need as is change. Perpetual change, particularly when disorderly, devolves into chaos. Even well-structured change can cause disorientation when it occurs at a rapid speed. (Khan 2009, 80)

Khan’s description underlines that law aims at maintenance rather than change. The dominant legal operation modes (after the fact) and the safeguarding of expectations against a changing and unknown future seem to corroborate the idea that law counter-

196  Research handbook on the sociology of law balances social change as much as it enables it. Even though one might agree with the qualification of law as a social stabilizer, law is not completely averse to change (Khan 2009, 80). But the approach towards change is usually cautious: When we change the laws too frequently and without seeking to ascertain whether the need or fairness of the changes really balances the decrease in predictability, then a decrease in trust will be the result. This consideration should be an important factor in lawmaking, posing the question: does the need for change really outweigh the price paid in terms of loss of legal certainty and predictability? (Ritzen and Heringa 2011, 344)

When law evolves, legal change is slow compared to changes in its environment. To be clear, inertia and slowness are closely intertwined, but not the same. Slowness refers to a relation: the temporal differential between law and society. Legal inertia indicates the state of the system’s temporality. Both slowness and inertia are connected to the purpose of law, that is stability (Khan 2009, 40), or in systems theoretical terms, its function. The time differential and the temporal state presents two dimensions of legal temporality that invite further research. It is not difficult to imagine that slowness and inertia can become increasingly problematic in an accelerating society. A third dimension, in the vein of Wistrich’s analysis, concerns the temporal orientation of the legal system, or how law deals with the time horizons, past and future. As law mainly operates as an after the fact system, the past cannot be but a dominant perspective and an important source of information. Even though that information is readily accessible, there is an important caveat: ‘(O)ur knowledge of the past is imperfect. Although we know more about the past than we know about the future, that does not mean that our view of the past is accurate.’ (Wistrich 2012, 797). Be that as it may, knowledge about the future is, for obvious reasons, far more problematic. That time horizon concerns the not yet, the waiting to happen, and provides in the present no data and no information. This may be one of the reasons that the importance of the past is overestimated and the future underestimated in modern law (Wistrich 2012, 744 and 749). The future is empirically inaccessible. Luhmann holds that in a rapidly changing society the difference between past and future gains importance (Luhmann 1993, 113). Arguably, the future is increasingly becoming relevant for the legal system (Wistrich 2012, 749). However, the future comes with a set of its own problems. As Luhmann puts it, the future is not only unknown, but depends on what happens in the present (Luhmann 1993b, 113). In a context of uncertainty, we have to make decisions and take actions that affect the future. So, what happens in the present is rarely without unintended consequences in the future, transforming it into a highly contingent, and hence open, time horizon. The question is whether it makes sense to discuss the future in the singular. Now that we can no longer outsource the future to God or destiny, but perceive it up to a high degree as of our own making because our decisions are pivotal to its design, multiple futures are conceivable. Whereas the first modernity centered on linear progress and, as a consequence, development towards a better future, contemporary society is confronted with a variety of possible futures. Multiple futures, some of which are desirable, others very much less so. One might conjecture that this contingency in the shape of multiplicity increases social uncertainty. But there are other problematic aspects to the concept of future. It has been argued that due to social acceleration, the future closes in on the present. The present shrinks, therefore the period to make decisions is shortened (Lübbe 2012; Rosa 2005, 131).

Sociology of legal temporalities  197 Nowotny, on the other hand, argues that ‘[A] present geared to accelerated innovation is beginning to devour the future’ (Nowotny 2005, 11). We are confronted with the ‘disappearance of the category of the future’ (Nowotny 2005, 8). According to Nowotny, the present is far from shrinking but, in fact, we have to deal with what she calls the ‘extended present’ (Nowotny 2005, 8). The future turns into an unattractive category we prefer to avoid rather than to deal with it. Problems like climate change, environmental pollution and the consequences thereof can no longer be deferred to the future, they demand our attention and action in the present (Nowotny 2005, 50). This causes the terror of the short-term and ad hoc solutions obscuring the necessity for long-term planning (Innerarity 2012, 8 and 35). Notably, this does not diminish the importance of the future: action here and now is required in order to enable any future at all. Whether one holds that the present is shrinking or extending due to acceleration, or that we have to deal with one or multiple futures, it appears as an uncomfortable time horizon. It is uncomfortable because it creates a sense of urgency that radicalizes our experience of social uncertainty. At this point, law enters the picture. Law seeks to function as a safeguard against the many uncertainties the future inevitably holds in store. The legal system is not oblivious to the state of affairs. It does not remain inert but reacts to the expected increase of uncertainty the only way it can because of its operational closure; that is, by stabilizing even more norms.4 Consequently, this solution leads to new problems, often discussed as extensive juridification and overregulation (Ritzen and Heringa 2011). At first glance, these problems do not seem to have a temporal dimension, but juridification and overregulation are likely to cause a tipping point where legal stability turns into legal rigidity. Rigidity causes legal time to move at a glacial pace.

UNCERTAIN FUTURES The future has changed shape and gears. As a consequence, social acceleration has complicated the relationship between modern law and this particular time horizon. First and foremost, this has to do with the features of modern law: it is geared towards stability over time. By stabilizing normative expectations it offers legal certainty, but it also operates for the better part after the fact; its overall Eigenzeit is experienced in terms of inertia and slowness. All in all, law is resistant to (fast) change, while the future requires fast decisions, fast change and legal agility. One complicating aspect might be that modernity is still the bedrock of contemporary law, and law’s aim is facilitating progress towards a desirable future (Přibáň 2007, 52). As suggested before, the idea of one future is nowadays hardly a tenable position. Even

4   Another example of the legal operational autonomy and a consequence related to social acceleration is discussed in Francot 2018. The example concerns the Dutch judiciary. In the Netherlands, the judiciary is under pressure to speed up. The political and public demand to do so is essentially an expression of a cognitive expectation, and the judiciary has started to ‘internalize’ this cognitive expectation in the sense that it is now becoming a norm. Acceleration is becoming an inconvenient part of the legal system. The legal system, while producing these acceleration norms itself, loses something of its temporal autonomy and typical inertia by adapting to the societal timelines.

198  Research handbook on the sociology of law though we are aware of the limits of ‘manufacturability’ (Machbarkeit), it is also clear that fundamental decisions concerning societal structures that shape our future almost certainly come with unintended consequences. That confronts contemporary society and law with the possibility of a plurality of futures, including dystopian ones. The debates on (inter)national security, global terrorism and climate change are fertile soil for a variety of scenarios of the future. Uncertain futures and progress are contingent. Despite all the planning, a lot can turn out differently. For all its stability, modern law is perhaps not really equipped to handle a hydra-headed time horizon like multiple futures. As a consequence of a strong focus on future, future is turning into a dominant factor in considerations and decisions, in rules and rulings (Wistrich 2012, 746). According to Wistrich ‘It is only natural that law should share this future-oriented perspective. Law is a practical discipline. It affects and is affected by the world’ (Wistrich 2012: 747). Wistrich argues that the prominence of the future in law is on the rise and ‘the influence of the past in the lawmaking process is declining’ (Wistrich 2012, 752). If this is so, then the legal system has to switch from reactive to proactive. That means a focus on pre-emption and precaution rather than expecting ‘business as usual’. Upcoming research in the field of sociology of legal temporalities could map out in detail what parts of the legal system are future-oriented and what parts are more past-oriented. An inventory of features that render law or parts of it future-oriented might shed a new light on for example the function of the legal system. As said before, an explicit reference to the future is embedded the function of the legal system (Luhmann 1993, 129). But it is, in a sense, a safeguard; in view of an uncertain future, law seeks to absorb uncertainty by transforming it into legal certainty. Law has ‘an indifferent attitude towards the future’ (Opitz 2011, 58). Constitutions are a point in case. As said before, the defining temporal feature of constitutions is their prospectiveness. According to Kay, the central issue is ‘how to draft stable reliable rules which will continue to make sense in substantially changed circumstances’ (Kay 2000, 34). This is all the more complicated since ‘(t)he creators of constitutions must speculate about the future in which their decisions will be applied’ (Kay 2000, 37). Because of their stability and the provisions taken to complicate their adaptation to societal changes, constitutions also bind future generations or seek to do so.5 The problem is obvious and at least twofold. As the future is uncertain, we cannot anticipate the way future generations are going to develop and how they are going to act. As a consequence, according to Kay, it is difficult to predict the possible relevance of a constitution for those generations. Another problematic issue is the question how fair it is to (try to) bind future generations to rules that voice the values of the constitution makers and mainly address present issues (Wistrich 2012, 757). One can assume that the binding force of law wanes as the future gets more and more uncertain. At some point, ‘every constitution exhibits an increasingly poor fit with contemporary facts and values’ (Kay 2000, 42). The legal system cannot absorb all new uncertainties. Of course, total certainty is a fiction and not even desirable, now as it always was. Nowadays there is, however, a general increase of contingency awareness (Rosa 2005: 181). One could say that in the late or third

5   Kay refers to this a ‘the great ambition of constitution-makers’ or in a phrase of Anne Norton, constitution-makers engage in ‘temporal imperialism’ (quoted in Kay 2000, 41).

Sociology of legal temporalities  199 modernity, our experience of social uncertainty has radicalized. How does modern law deal with this state of uncertain affairs, with ever faster changing circumstances? Illustrative is the approach by Opitz (2011) and Opitz and Tellmann (2014), discussing conflicting legal temporalities and how the law inverts its own temporality under certain conditions. The starting point of the Opitz’ inquiry into conflicting legal temporalities is Luhmann’s risk sociology (Luhmann 1993b, 131–69). In short, Luhmann observes a gap between the legal temporality and the temporality of risk. The temporality of risk is future-oriented: risk refers to possible, but not yet occurred, damage. In order to avoid possible damages from coming into existence, fast adaptations are required. The legal system, on the other hand, operates after the fact and advocates consistency as one of its pillars. However, to avoid the actualization of risks, we have to endure all kinds of inconsistencies, including legal ones (Opitz 2011, 60). Luhmann suggests that if the legal system wants to engage in issues of risk and danger, it might have to take a non-normative attitude towards surprises (Luhmann 1993b, 147). But such a non-normative attitude towards contingencies would be out of the ordinary legal order. Opitz poses the question how law itself can constitute a temporality that goes against its own Eigenzeit, which is potentially destructive for the typical legal temporality. He analyzes two examples of future-oriented measures: preventive detention and the doctrine of preemptive warfare. Though each has its own logic, the common ground of these measures is the prevention of future damage (of different kinds) by acting in the present. It goes against the legal grain of operating after the fact by taking a prospective turn and thus constituting a counter temporality within the law. In a similar vein, Opitz and Tellmann argue that perceiving the future in terms of catastrophes and emergencies, such as terrorism, climate change, market crashes and pandemics, ‘disrupts and disfigures legal temporality.6 (Opitz and Tellmann 2014, 108). This particular conceptualization of the future is denoted by the authors as an emergency imaginary (Opitz and Tellmann 2014, 107). Emergency imaginaries collide with the Eigenzeit of law: ‘More precisely, law tends to invert the specific temporal structures it has acquired over long centuries whenever it seeks to accommodate a highly alarmed and pre-emptive stance’ (Opitz and Tellmann 2014, 118). Whereas the legal system is characterized by its typical retrospective way of dealing with events and its resistance towards an ever-changing future, future emergencies necessitate a revision thereof. The legal system must invert its own temporality in order to prevent the actualization of catastrophes like, for example, terrorist attacks. It requires law to imagine worst case scenarios and to stabilize norms that prevent these scenarios from becoming reality: to forecast instead of retrospectively applying norms, to act before the possible fact. Opitz and Tellmann: A law which cultivates the insecurity of social expectations, which projects norms into the future and which suspends procedural safeguards in order to accelerate limitlessly – such a law amounts to a disfigured law, if one takes the legal temporalities that guarantee due process and habeas corpus as a standard for liberal law. . . . If law should adhere to the temporal pressures imposed on it, it will alter its own operative logics fundamentally, up to the point of not being not recognizable as law at all. (Opitz and Tellmann 2014, 112)

6   Opitz and Tellmann also discuss the effect of the so-called emergency imaginary on the economic temporality (Opitz and Tellmann 2014).

200  Research handbook on the sociology of law What Opitz and Tellmann’s approach illustrates, is that the temporalities of law are constitutive for our understanding of what law can and cannot do in a society with a focus on the future.

CONCLUSION This chapter sought to illustrate the fact that law, at least modern law, is essentially a time machine. In the present, law connects us with the past and the future and does so in a variety of ways. Law is utilized to arrange time and law itself uses time to manage complexity and contingency. And yet, the intricate relationship between time and law is only one starting point for a sociology of legal temporalities. From a systems theoretical view, one could say that the legal system produces and reproduces legal time as a part of its operational autonomy. The pervasiveness of the temporal dimension shows itself to be particularly clear in the function of the legal system; that is, stabilizing normative expectations, which has a time binding effect. While stable norms bind past and future in the present, the legal system operates mainly after the fact. All in all, it offers stability, presented as legal certainty. This stability ties in with Khan’s notion of legal inertia: a certain resistance against fast changes (Khan 2009). This legal inertia, typical of temporalities within the law, needs to be distinguished from slowness. Slowness denotes the temporal differential between an accelerating society and the legal system, hence presents a relationship. Combined, inertia and slowness characterize the proper time of modern law, its Eigenzeit. Although the legal Eigenzeit aims to contribute to social stability and certainty, it is transforming into a problem in an accelerating society, widening the gap between law and society. In a fast moving society, the focus is predominantly on a highly uncertain future while the legal system still mainly operates after the fact. If the time gap becomes too wide, the legal system might be in danger of becoming obsolete. Wistrich, however, argues that the idea of lawmaking as mostly or even solely past oriented is outdated: lawmaking is evolving towards a stronger orientation to the future (Wistrich 2012). Despite this development, modern law is still not really well equipped to deal with uncertain futures. For one, this has to do with the fact that the future is perceived as an open time horizon. Not only is the future unknown and affected by the present decisions, it is possible to envisage multiple futures. The only certainty is the radical uncertainty of the future. The question is what this entails for law. Does law have to switch from stability to agility, from reactive to proactive, committing fully to precaution and pre-emption? Through a discussion of the function and purpose of law, a sociology of legal temporalities opens up the fundamental question of what law is and what it can be in the current stage of modernity. Do social developments like social acceleration and the increasing awareness of a highly uncertain future transform the legal system at its very core? And, if so, how? These overarching questions give way to various lines of research pertaining to issues, such as changes in the Eigenzeit of the legal system, time differentials between law and society, and the different temporalities with law, ranging from its organizations to temporal issues in specific areas of law such as constitutions, criminal law, labor law and so on. A sociology of legal temporalities takes into account that the future has become a very relevant time horizon, albeit a problematic one. This initiates the question of whether law could and should be future proofed and, if so, how.

Sociology of legal temporalities  201

REFERENCES Adam, Barbara. 1990. Time and Social Theory. Cambridge: Polity Press. Benda-Beckmann, Keebet von. 2014. ‘Trust and the Temporalities of Law’. The Journal of Legal Pluralism and Unofficial Law 46 (1), 1–17. Beynon-Jones, Siân M. and Emily Grabham. 2019. Law and Time. Oxon: Routledge. Cipriani, Roberto. 2013. ‘The Many faces of Social Time: A Sociological Approach’. Time & Society 22(1), 5–30. Corrias, Luigi and Lyana Francot (eds). 2018. Temporal Boundaries of Law and Politics: Time out of Joint. London: Routledge. Esposito, Elena. 2011. The Future of Futures. The Time of Money in Financing and Society. Cheltenham: Edward Edgar. Francot, Lyana. 2018. ‘Suspended in Gaffa: Legal Slowness in the Acceleration Society’. In Luigi Corrias and Lyana Francot (eds). Temporal Boundaries of Law and Politics – Time out of Joint. London/New York: Routledge, 88–106. Francot, Lyana and Sophie Mommers. 2016. ‘Picking up the Pace – Legal Slowness and the Authority of the Judiciary in the Acceleration Society (a Dutch Case Study)’. International Journal of the Legal Profession 23, 1–19. Giddens, Anthony. 1994. ‘Living in a Post-Traditional Society’. In Ulrich Beck, Anthony Giddens and Scott Lash (eds). Reflexive Modernization. Politics, Tradition and Aesthetics in the Modern Social Order. Cambridge/ Oxford: Polity Press, 56–109. Greenhouse, Carol. 1989. ‘Just in Time; Temporality and the Cultural Legitimation of Law’. The Yale Law Journal 98, 1631–51. Innerarity, Daniel. 2012. The future and its Enemies: In Defense of Political Hope. Stanford, CA: Stanford University Press. Kay, Richard S. 2000. ‘Constitutional Chrononomy’. Ratio Juris 13(1), 31–48. Khan, Liaquat A. 2009. ‘Temporality of Law’. McGeorge Law Review 40, 56–106. Lazar, Nomi C. 2019. Out of Joint: Power, Crisis, and the Rhetoric of Time. New Haven CT: Yale University Press. Lübbe, Hermann. 2012. ‘Gegenwartsschrumpfung und zivilatorische Selbsthistorisierung’. In Frithjof Hager and Werner Schenkel (eds). Schrumpfungen. Chancen für ein anderes Wachstum. Ein Diskurs der Natur- und Sozialwissenschaften. Heidelberg: Springer, 11–20. Luhmann, Niklas. 1976. ‘The Future Cannot Begin: Temporal Structures in Modern Society’. Social Research 43(1), 130–52. Luhmann, Niklas. 1993. Das Recht der Gesellschaft. Frankfurt am Main: Suhrkamp. Luhmann, Niklas. 1993a. Soziologische Auklärung 3. Soziales System, Gesellschaft, Organisation. Opladen: Westdeutscher Verlag. Luhmann, Niklas. 1993b. Soziologische Auklärung 5. Konstruktivitische Perspektiven. Opladen: Westdeutscher Verlag. Luhmann, Niklas. 2008. Rechtssoziologie. Wiesbaden: VS Verlag. Nelken, David. 2004. ‘Using the Concept of Legal Culture’. Australian Journal of Legal Philosophy 29, 1–28. Nelken, David. 2008. ‘Normalizing Time: European Integration and Court Delays in Italy’. In Hanne Petersen, Anne Lise Kjaer, Helle Krunke and Mikael Rask Madsen (eds). Paradoxes of European Legal Integration. Aldershot: Ashgate, 299–323. Nowotny, Helga. 1992. ‘Time and Social Theory: Towards a Social Theory of Time’. Time & Society 1(3), 421–54. Nowotny, Helga. 2005. Time. The Modern and Postmodern Experience. Cambridge: Polity Press. Opitz, Sven. 2011. ‘Widerstreitende Temporalitäten: Recht in Zeiten des Risikos (Conflicting Temporalities: Law in Times of Risk)’. Behemoth 4(2), 58–82. Opitz, Sven and Ute Tellmann. 2014. ‘Future Emergencies: Temporal Politics in Law and Economics’. Theory, Culture & Society 32(2), 107–29. Přibáň, Jiří. 2007. Legal Symbolism: On Law, Time and European Identity. Aldershot: Ashgate. Postema, Gerald J. 2018. ‘Time in Law’s Domain’. Ratio Juris 31(2), 160–82. Rhee, Remco van. 1997. ‘De traagheid van de civiele procedure: een eeuwenoud fenomeen (The slowness of the civil procedure: an ancient phenomenon)’. In Beatrix Jacobs (ed). De rechtspraktijk in beeld. Van Justinianus tot de Duitse bezetting. Tilburg: Tilburg University Press, 57–67. Ritzen, Jo and Aalt W. Heringa. 2001. ‘An Immanent Implosion of Legal Systems?’. In Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kirstemaker (eds). The law of the future and the future of law. Oslo: Torkel Opsahl Academic EPublisher, 341–53. Rosa, Hartmut. 2005. Beschleunigung. Die Veränderung der Zeitstrukturen in der Moderne. Frankfurt am Main: Suhrkamp.

202  Research handbook on the sociology of law Rosa, Hartmut. 2013. Social Acceleration. A New Theory of Modernity. New York: Columbia University Press. Rosa, Hartmut. 2018. ‘Airports Built on Shifting Grounds? Social Acceleration and the Temporal Dimension of Law’. In Luigi Corrias and Lyana Francot (eds). Temporal Boundaries of Law and Politics – Time out of Joint. London: Routledge, 73–87. Scheuerman, William E. 2004. Liberal Democracy and the Social Acceleration of Time. Baltimore: John Hopkins University Press. Wistrich, Andrew J. 2012. ‘The Evolving Temporality of Lawmaking’. Connecticut Law Review 22(3), 737–826.

16.  Sociology of legal images Linda Mulcahy

INTRODUCTION Images form an essential part of the way that we communicate jurisprudential concepts or construct, challenge and understand law and socio-legal phenomena. Despite the ubiquity of images in society the social sciences have been surprisingly slow to recognise the visual or visual culture as a distinct field of inquiry. In the period before the mid-twentieth century, the task of analysing images was largely left to the discipline of art history where the focus was on the acquisition of knowledge about particular painters, genres, styles, techniques as well as determination of provenance and taste. The visual turn in the academy has since given way to a rapid burgeoning of interest in the field, or what Jay (2002) has described as the arrival of an ‘academic juggernaut’. We now talk of visual culture, visual criminology, visual anthropology, visual geography, visual sociology, visual jurisprudence and even visual prudence. These various sub-disciplines are grounded in the idea that valid sociological insights in society can be acquired by observing, analyzing and theorizing its visual manifestations (Pauwels 2010). Within the academy there has traditionally been a strict hierarchy of legitimate objects of study that is sometimes expressed, but often assumed and this had led to a marginalisation of studies of the image in law schools. As this has changed we have seen the emergence of a broad range of new source materials in discussions of law, including legal icons, fine art, emblemata, sculpture, photographs, documentaries, fictional films, cartoons, graffiti, images in broadsides and newspapers, judicial portraiture, carte de visite, mugshots, police photography and abandoned legal evidence.1 These new forays into law and visual culture demonstrate the ways in which what constitutes a serious object of law and society research can evolve. By way of example, studies of law and the image provide an important reminder that, in many cultures, art and literature have always been central elements to the performance, embodiment and recognition of law. Manderson (2015) has also argued that one of the major tasks of twenty-first century research is to begin to challenge the extent to which theories of law and image would benefit from exposure to forgotten images from colonial pasts. As many have noted, attention to the sociology of legal images is becoming increasingly important because of the proliferation of the production and widespread dissemination of electronic images which now form such an important part of how we communicate (Goodrich 2011). Vissman (2008) has suggested that images seem to be literally pouring from the sky, and Sherwin (1995, 2011) has argued that new technologies have transformed the social and cultural practices of legal meaning, requiring new forms of

1   See for instance, Goodrich 2014; Biber 2018; Douzinas and Nead 1999; Moran et al. 2012; Young 2005; MacNeil 2007; Mulcahy 2015.

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204  Research handbook on the sociology of law visual eloquence within the legal academy. The widespread use of surveillance cameras, multimedia displays, video links in courts and computer simulations of evidence have facilitated a new invasion of the visual into the law’s realm. Legal scholars are now raising a host of important sociological and methodological issues about how we should approach, understand and use images in our work as we increasingly inhabit a digital matrix of synthetic images (Sherwin 1995; Loizos 2000). For Sarat (2011) mass mediated images should be seen to be as powerful, pervasive and important as other social forces, such as globalisation, neo-colonialism and human rights, in shaping and transforming legal life, prompting a shift from law in books and law in action to law in images. The visual turn has also had a significant impact on the ways that we now think about ways of doing socio-legal research. Recent decades have seen a new interest in using images as data in their own right rather than as adjuncts to words or numbers. While images have often been used as illustrations of a sociological phenomenon, it has been less common to treat them as the subject of analysis in their own right. By way of example, the study of visual representations of justice represent a break with a long tradition of a fetish with the written and spoken word in legal scholarship and education (Goodrich 1986). The opening section of this essay considers the distinctive characteristics of images that render them different from numbers or text. It then goes on to consider what the image can tell us about the way that legal power operates through images, before going on to consider what images can tell us about how law is experienced and resisted. The concluding section discusses the ways in which the image can be used as a tool in the production of knowledge about law.

THE DISTINCTIVE CHARACTERISTICS OF IMAGES Images are generally taken to be more anarchic than text or numbers. Unlike the text which must be read in English from the left to the right, line after line, images can be entered at any place in the visual field and the sense of a prescribed order in reading words or columns is absent. When we observe an image, we may well grasp the simultaneous presence of many disparate things within one frame. The result is that images have the potential to reveal a multiplicity of othernesses and differences which are for the most part silenced in texts. For some commentators, a picture has a density in its depiction of ideas and forces which can be easy to acknowledge but difficult to decipher. Douzinas and Nead have suggested that images can be understood as sensual, with the power to short circuit reason without the interpolation or intervention of language or interpretation. In a similar vein, Manderson (2015) has argued that like sound, vision draws out memories and associations which may offer incomparable and divergent paths to the interpretation of the legal world. In short, they have a complexity in their depiction of the relationship of ideas and forces that should not be underestimated. Scholars have also drawn attention to the many ways in which law as a discipline has been anchored in the reification of the text at the expense of the image. In literate societies law is generally associated with tablets, books, scrolls, case reports, plea rolls, writs and written codes. Such is the importance of the written record of law that the book has become part of the iconography of western law, frequently placed alongside images of Justitia or lawgivers such as Moses. In doing so the law book has become a symbol, a figure of truth and record, an object of reverence (Goodrich 2011). This reification of the

Sociology of legal images  205 text reflects more than a preference for the written word. Many civilisations and religions have not only embraced the word but retained a suspicion of the image (Douzinas 2000). This has been particularly evident in European cultures since the Protestant reformation, after which the images have tended to be treated as an anathema to modern legal systems that rely on reason and rationality. Leading to a fundamental alteration of the meaning given to images, it has been argued that the resulting iconophobia facilitated the construction of a binary divide between the image and the text in which the image was linked to imagination, creativity and playfulness, and legal texts to control, discipline and sobriety (Douzinas and Nead 1999). Viewed in this way, images have been said to speak directly to the senses, affect the psyche, address the labile elements of the self and avoid the calming intervention of logos. The painter or viewer of art is conceived of as free, desiring with gender and history, while the judge or litigant must be constrained, rational and genderless (Douzinas 2000). While one discipline aspires to ambiguity or multiple interpretations, the other aspires to semantic certainty. For Vismann (2008), jurists also fear being seduced or persuaded by images because of their ability to attack the order of regimes that may have been intact for centuries. The contention that images such as realist paintings, photographs or film are capable of reflecting ‘reality’ has been much debated and few would now argue that images are straightforward representations of objects, though the temptations of realism still exist. This is particularly true of the photograph, which has most frequently had its epistemological status discussed (Moran 2015). Instead of trusting to the integrity of the image it is now much more common to talk about ways of seeing, the hermeneutics of seeing, cultural relativism, imagistic signifiers or visual narratives (Jay 2002). As Berger (1973) argued in Ways of Seeing, what we see is always influenced by a host of learnt expectations about the nature of truth, civilisation, form, taste, class and gender. Paying attention to who makes images, how they are made and their purpose also compels us to focus on the discursive or cultural context in which they are produced (Mitchell 2013). This does not necessarily mean that we can only ‘read’ images as a form of culturally specific discourse in the same way as we might read text. Rather than being arbitrary signifiers of things, as words are, it has been argued that images confer an element of indexicality, evidentiary connection or trace with the things they seek to represent. Though much critiqued, this claim demands to be taken seriously by sociologists of images because of the possibility it promises of images transcending cultural codes, which are central to their power. Jay (2002) has argued that the attraction of images derives from the contention that they are not necessarily entirely subsumed under the protocols of specific cultures. Examples of the capacity of the visual to liberate themselves from linguistic and cultural constraints include images of pornography or human suffering (see further, Sontag 2003). For the sociologist, this renders images critical to understandings of the world because of the possibility that they reflect transcultural expressions of concepts of law and justice.

IMAGES OF LAW PRODUCED BY THE STATE Legendre (1994) has argued that a secure legal order can be characterised by the command that it has over image production and use; making images work for legal regimes so that they no longer have to be feared in the ways rehearsed above. Viewed in this way the

206  Research handbook on the sociology of law vocabulary that law develops in relation to the regulation and control of image focuses on such concepts as ownership, privacy, obscenity and reliability. Within the field of evidence images have typically been designated as having no more than the status of secondary evidence, used as a mere illustration of the stories that emerge in the course of oral or written testimony (Mnookin 1998). In his work on evidential images Haldar (2008) has drawn attention to the ways in which legal rules decide what images can be admitted as evidence, how their provenance can be determined, that they are not false images but produced as far as possible through an acheiropoietic process. More recently it is noticeable that while legal systems across the world have embraced the use of video technology for use by witnesses and others required to appear in court, courts have been keen to restrict the use of still images and films of the court being transmitted to those outside (Mulcahy 2018). This reflects what Mohr (1999) has argued is a tendency to strictly police the boundaries of law’s traditional and sacred performance spaces. Law has also been intimately involved in the politics of visuality through its regulation of images and control of the production of legal iconography. Power regimes commonly ensure that the images they commission or sanction have an emblematic character which speaks to the ideals of the regime or its rhetoric. Art and architecture have long played a strategic role in supporting and legitimising power structures and in doing so have been used as the handmaidens of established states and emerging political elites. Narratives about the heroic artist who breaks new boundaries are common, but the lack of impetus for artists to violate the bureaucratic or political boundaries of the state also need to be acknowledged in this context. The icon invites the imagination to link vision to a certain type of moral ordering. A notable example in an English context is the visually rich English Assize processions and religious services which saw judges and their retinue process from county boundaries to Assize courts accompanied by the local legal and political elite, from the Middle Ages until the 1970s (Graham 2003). Others have focused on the role that legal robes and wigs have played in visual displays that legitimise trials as special sorts of events (Watt 2013). Attention has also been drawn to images in the tradition of exempla virtutis (examples of virtue) in public places that identified moral acts to be imitated. Included in this category are the many paintings of the Last Judgement that were displayed in town halls, which served to remind judges and litigants who attended trials that their fate ultimately lay in God’s hands (Resnik and Curtis 2011). A key theme to emerge from research on state sanctioned images is that they have tended to conform to certain codes about the sort of messages that powerful legal and political elites expect to be portrayed; what Douzinas (2000) has referred to as an economy of permitted images. Of all the many state sanctioned representations of justice in the public sphere, it is images of Justitia that have received the most focus amongst western sociologists of legal images. Legal systems that draw on European legal traditions can be confident that a woman with a sword and scales will be instantly recognised as an emblem of justice. The cultural resonance of Justitia is such that representations of this commanding and authoritative figure can be traced back centuries to a variety of forms including paintings, stain glass, pottery, jewellery, tarot cards, stamps, coins and product labels. Statues of formidable Justitias are also commonly seen on historic and contemporary justice facilities and government buildings across the Americas, Australia and Europe. Capers (2006) has suggested that from the Renaissance onwards standardised images of Justitia became so ubiquitous in courthouses, law books and law schools that representations developed the

Sociology of legal images  207 weight of a ‘given’. Others have suggested that they have become a modern quasi-religious and quasi-political icon (Resnik and Curtis 2011). Operating at the level of legal myth, Justitia has become a vital weapon in the armoury of those keen to preserve the status quo (see further Manderson 2015). The state has much to gain in appropriating her aspirations to higher ideals. Curtis and Resnik (1986) have argued that trepidation about the fact that judgments are rendered by all too mortal judges has meant that states have attempted to disassociate the notion of justice administered in their courts from human fallibility. This is reflected in the rhetoric behind the range of props which have accompanied depictions of Justitia, which include the book or tablet, the sword, fasces or bundles of lictor rods, cornucopias, orbs and globes, skulls, dogs, snakes, ostriches and cranes, each of which focused on particular attributes associated with fairness. By way of example the book signifies the importance of authoritative legal texts and the raised sword the importance of justice not bending to favour one side (see further Resnik and Curtis 2011). Justice is also frequently represented as a beautiful virgin, apparently exempt from passion and uncorrupted by flattery or gifts. In other instances she has also been accompanied by a jug or basin to reflect the importance of judges and litigants being pure of soul and clean of hand. The meaning of the blindfold, said to represent Justitia’s failure to be tempted by appearances or the need for inner reflection, has also been much debated in scholarly circles (Jay 1999; Resnik and Curtis 2011; Goodrich 2012). Image making and image management is of particular importance to legal elites. This is well illustrated in Les Moran’s (2009) work on judicial portraiture, an established cultural form with its origins in the fourteenth century which clearly reflects the notion of an economy of permitted images and code in action. He argues that since the nineteenth century judicial portraiture has been understood as much more than portraits of individuals. Rather, judicial portraits have played a double role in identity formation by fashioning the identity of the sitter and the institution that they represent. In focusing on the institution these images play an important role in the composition and construction of collective identities. Moran observes that full or three-quarter body poses dominate judicial portraits and that the focus is commonly on the body clothed in judicial garb rather than the face of the judge, summising that ‘The body is little more than a device to hold and display the insignia of office’ (Moran 2009, 299). Facial expressions are routinely standardised and depict gravity, austerity, a sturdy tranquillity and deep introspection. Props are strictly limited with the book being the exception. The visuals codes employed by the state have not necessarily remained static. Each epoch develops its own regime of visuality, amounting to the complex administration of an era’s available ways of seeing (Douzinas 2008). According to Jay (1999) signs of the impartiality of justice, symbolised most obviously in her blindfold, were particularly important to the new, bourgeois culture of the early modern period which strove to leave behind the personalism of private feudal justice. Viewed from this perspective it was no coincidence that statues and fountains of blindfolded Justitia were placed in town squares and newly erected civic buildings in which a nascent public sphere was in the process of emerging. Resnik and Curtis (2011) have also drawn attention to the ways in which medieval portraits of corrupt judges being punished, such as the Flaying of the Corrupt Judge by the Flemish artist Gerard David, provided opportunities for the Belgian State to make clear that judges were subservient to, rather than independent of, their paymaster at a time when proto-democratic practices were only beginning to emerge. In a similar vein,

208  Research handbook on the sociology of law Moran (2009) draws our attention to the ways in which recent photographic portraits of judges have departed from the template used for oil paintings, adopting a more informal head and shoulders pose that focuses more on the face. He suggests that this is evidence of judicial subjects and institutions being refashioned for a bourgeois democracy shorn of the trappings of aristocratic elitism. The ways in which states fashion an economy of permitted images can also be seen by reference to the sorts of images they control and ban. Law and the legal system have, for instance, been active in regulating images depicting judges and the legal system when they have not been produced or sanctioned by state actors. It has been suggested that we can understand that the banning of photography in English courts in 1925 was a way of keeping legal image production away from the mass media and the tabloid papers in particular (Nead 2002). Despite the fact that parliamentarians claimed that the purpose of the ban was to protect vulnerable members of the public, it actually did a much better job of preserving the interests of the judiciary and the state against a backdrop of fears about an increasingly disrespectful populace. More particularly, it has been suggested that the ban allowed the state to take back its monopoly over the production, management and consumption of images of judges and other key actors in the courtroom in an effort to reimpose social order and retain the mystery of law (Mulcahy 2018). Elsewhere, Asimow et al. (2005) discuss early attempts to regulate the film industry in the United States in order to ensure that legal professionals were not shown in a bad light. For law and society scholars, the focus in these examples is on maintaining the myth of legal ideals and law on the books. These ways of thinking about the interface of law and the visual through state sanctioned images can be distinguished from studies of the ways in which technologies have promoted the visual capture of law’s subjects by the state. No account of the sociology of legal images would, for instance, be complete without an exploration of the role that the photograph played in a modern criminal justice system largely designed to manage the criminality of a semi-literate population. The invention of the photograph in the early nineteenth century quite literally changed the way people saw crime and criminals, and the photographic conventions established during this period continue to dominate much contemporary thinking about how criminals are expected to look and be. The photograph has been used to create documentary images of the arrested and incarcerated, and the resulting mugshots emblematic of the new technologies of power that have become possible in the criminal justice system since the nineteenth century. Accounts of the mugshot have commonly been grounded in a Foucauldian understanding of the emergence of new technologies of power designed to produce docile bodies, or what Tagg (1988) has famously called the burden of representation. Viewed from this perspective, mugshots showing compliant prisoners of the state, provide an excellent, if not an ideal, exemplar of the biopolitics of power in modernity. Mugshots in the nineteenth century became part of a sophisticated tracking system which allowed bodies to be observed across time and place. Throughout the world they also prompted the need for, and were closely associated with, another major phenomenon linked to the age of reform: the archive. People arrested by the police or sent to prison in the Victorian era were the first to experience a new form of multiple incarceration by the state, which involved physical capture by the police, mechanical capture by the camera, bureaucratic capture by archives and synoptic surveillance in rogues’ galleries. The advent of the mugshot allowed the bodies of criminals to be classified, analysed and ordered in the absence of the person.

Sociology of legal images  209

IMAGES OF LAW FROM THE BOTTOM UP The power of the image in law’s empire can also been seen from a radically different angle. Visuality can also be seen as playing a major role in engaging law’s subjects and audiences by involving the populace in debates about it (Moran 2009). The visual turn in the social sciences has facilitated an increased sensitivity to the many ways in which people learn about, reflect on and critique law. Moving away from the traditional repertoire of legal icons used by the state to symbolise the ideas of justice, such as images of Justitia, scales, trees or Xie Zhi, sociologists of legal images have paid increasing attention to popular culture in their attempts to understand how law and legal concepts are represented visually and alternative normative possibilities debated through images. The result has been a discernible growth in the discussions of the role that law plays in everyday life. This attention to the ways in which stories are told about law has served to decanonise the traditional subjects of legal scholarship, such as those rehearsed above (Sarat 2011). Distinguishing themselves from traditional studies of art history that focused on style, technique and ‘high’ culture, proponents of visual culture and the new art history that emerged in the 1970s have demonstrated a new democratic impulse by paying attention to forms of art and image making that has previously been ignored (Harris 2001). This finds expression in the increasing willingness to take all manifestations of our visual environment seriously, not only those deliberately created for aesthetic effects. By way of example, Gillian Rose includes discussions of paintings, photographs, films, televised soaps and adverts in her book on Visual Methodologies (Rose 2016). A growing number of socio-legal scholars have added comic books, cartoons, street art, children’s books and newspapers to this collection in their attempts to explore the way that legal subjects think about law. Seen in this way, the visual offers up new possibilities to take seriously subaesthetic, marginal and non-canonical images in our mapping of law in the everyday, and to question the ontological and status of the text and to re-examine traditional notions of who produces, manages and beholds legal images. It allows us to go one step beyond images of the legal system produced by political elites or film magnates and to subject to serious analysis the images produced by users or watchers of the legal system, such as street artists and smart phone photographers. The engagement of popular culture with law has a long heritage. Studies of comics and graphic novels can, for instance, chase their origins to the broadsheets and newspapers aimed at mass circulation in earlier centuries, with publications such as The Illustrated Police News, one of Britain’s earliest tabloids, being exclusively dedicated to reporting stories about crimes and trials. The importance of these popular representations of law, which rely so heavily on the image, is that they promoted legal discourse independently of the formal institutions of law and their prescribed discourse. In addition to educating or miseducating citizens about the workings of law and the legal system, these outlets also had the potential to project alternative visions or justice to those promoted by the legal system. Looking at law through the lens of popular culture prompts important discussions about legal consciousness and grounded theories which focus on what the populace expect of law, and imagine it could be. The proliferation of images of law occasioned by the invention of photography and moving images has heightened our awareness of the importance of the image-law dynamic, and has become a rich source of study for sociologists of law. Writers have, for instance, drawn attention to the interest that specta-

210  Research handbook on the sociology of law tors of the legal system share in relation to drama, violence, illicit imagery and rituals of punishment (Sherman 2011), while others have suggested that the interest of the film industry in law and justice stems from the particular relationship that law has to violence and the primal anxiety about the tension between violence and legitimate authority that the public nurse (Mezey 2011). The subversive potential of popular culture is also of interest to sociologists of law interested in the gap between the rhetoric and reality of the legal system. Visual representations of justice have, for instance, done much to undermine the claim of the state to deliver justice that is fair and impartial. In his account of Gustav Klimt’s depiction of Jurisprudence, commissioned by the University of Vienna at the beginning of the twentieth century, Manderson (2015) draws attention to the scandal caused by the depiction of legal beings as objects both degraded and rendered vulnerable by law. He argues that the implication of law in violent and oppressive acts provides a critique of legal formalism that has survived long after the work was first shown, and is predictive of the relationship between sovereignty and bare life. Elsewhere, artworks such as the murals in the Mexican Supreme Court have been used to implicate the justice system in the abuse of human rights or to expose the ways in which idealised visions of justice in public art works served the particular needs of middle class industrialists in the nineteenth century. Artists’ depictions of Justitia as black, communist and working class, or in need of counsel, have also served to expose taken for granted assumptions that Justitia is of high status, apolitical and white (Resnik and Curtis 2011; Mulcahy 2013). The placement of non-commissioned art in public places without the permission of those who own the walls on which it is placed provides an excellent example of the ways in which new ways of understanding property, authority and citizenship can be facilitated through the production of art work. There is now significant academic literature about street art, which traces the growing importance of this social and global phenomenon. Sociologists have conducted a range of empirical studies that have focused on various characteristics of the movement, including: attempts to understand the motivations of street artists and graffiti writers; the association of graffiti and street art with discourses of dirt and disorder; the norms and practices which allow street artists to be defined as a subculture, and attitudes to the regulation of the work produced (Cresswell 1992; Halsey and Young 2006; Flessas and Mulcahy 2018). Young’s (2013) work on the topic draws particular attention to the links between street art in imagining and creating publicity in which there exists a radical ‘commons of the image’ and the challenges that this poses to regimes of property, community and authority. Scholars have also drawn attention to the ways in which technology continues to challenge state regulation of the production of legal images. The advent of handheld and cheap cameras has democratised the production of images of law and created citizen journalists who produce photographs of law in practice. Attempts by the state to manage this modern phenomenon include such things as bans on the taking of photographs of the police by the general public.2 Bourdieu (1990) has suggested that what makes modern photography so troublesome to legal, social and political elites is the fact that unlike the

2   In a UK setting, see further Section 76 of the Counter Terrorism Act 2008 and the Criminal Justice Act 1925.

Sociology of legal images  211 other visual arts or ‘noble’ cultural practise it requires little or no training, is universally accessible and indifferent to the rules of propriety which govern the aesthetic consumption of the privileged classes. Examples of citizen journalism in relation to law can be seen on YouTube, with its regular diet of films of violent outbursts in courts, arrests or escapes taken on the mobile phones of lay spectators.3 These form a distinctive counter narrative to state choreographed images of the justice system.

VISUAL METHODOLOGIES AND METHODS Sociologists of legal images have also attended to questions about how we analyse images and the use to which they can be put in research. For some, visual research is still a rather dispersed and ill-defined domain within the social sciences and in need of a more unified conceptual and methodological framework for dealing vigilantly with the specifics of this relatively new way of scholarly thinking. Useful distinctions have been drawn between ‘found’ images and those created by the researcher in the data collection process, but it has been argued that attention also needs to be paid to the provenance of images, the purpose for which they were made or commissioned, the aesthetic tradition to which they belong, and their production, management and consumption (Pauwels 2010). Perhaps, most importantly, there is a need to acquire knowledge of the representational cultures to which images of law and legal phenomena belong. This gives rise to a plethora of questions. What work is an image doing? Who is being represented and how? What effect does an image have on our understanding of norms and deviance? What societal conventions govern the production of images and how does this allow us to decode what we see? Methodologists are also increasingly interested in moving away from the idea of images as data toward discussion of the ways in which images can be used as tools in the production of knowledge. Images could, for instance, be used during interviews as a way of eliciting passive memories. It has been argued that close attention needs to be paid to the different physical properties which impact on the ways in images make meaning in the legal arena. Oil paintings, photographs and comics all have different textures and conventions that govern their production. This observation also applied equally to the ways in which an image is framed. A gilded frame in an art gallery may, for instance, convey a stronger sense of an image being precious or revered than one which sits within the synthetic surround of a computer screen or the gaudy straplines of a tabloid newspaper designed to shock or surprise us (Moran 2015). The framing of images in the legal arena is of particular significance as new technologies are increasingly being used to ‘beam’ people into court to give evidence. The increasing use of videolink technology has led to ‘dispersed’ courtrooms in which people appear in court from offices, video suites, police stations and prisons. No longer positioned in the special places designated for trials, the design of which has taken centuries to evolve (Mohr 1999; Graham 2003; Mulcahy 2010; Mulcahy and Rowden

3

  An example can be seen on YouTube, which shows an arrest of a juvenile for jaywalking involving approximately nine officers with an onlooker shouting at the police officer to stop because ‘He’s just a kid’.

212  Research handbook on the sociology of law 2019), videolink has the potential to disrupt the physical boundaries of law’s theatre and to frame people in radically different ways. No longer set against the backdrop of wooden panelling in a room designed for legal performances, those who appear in court from a distance may now be set against the backdrop of a bland office environment, or signifiers of incarceration (McKay 2018). Size may also be important and call for a grander setting for display. Moran (2009) has also drawn attention to the importance of the order in which images appear when displayed. In the case of judicial portraits he observed that their presentation within courthouses can serve to promote a sense of visual institutional continuity, whether in the form of chronologies of the sitters that held a particular post, shared aesthetic qualities, or even a genealogy. The captions or descriptions that appear alongside images will also impact on their reception. As Sontag (2003) reminds us in the context of her work on the photograph, all images wait to be explained or falsified by their caption. A final consideration for the sociologist of legal images is a consideration of absence; the experiences, traits, people and ideals that are missing from the representation of law, legal subjects and legal phenomena. Studies of judicial portraiture in a European context commonly draw attention to the absence of women and people of colour. Studies of mugshots alert us to the fact that most prison populations are made up of the impoverished and marginalised in society. In these, the absence of images also has much to say about who is valorised, marginalised and regulated in a society. As Vissman (2008) has suggested in the context of the regulation of permitted images, the blank created by the ban provides the law with its own visibility.

CONCLUSION Law’s relationship to images has often been assumed or ignored, but has rarely been the subject of detailed scrutiny until recently. We are now witnessing a rapid expansion of the field, its sources and the theoretical frameworks being used to unravel the law-image dynamic. Recent scholarship has drawn our attention to the work that images can do in constructing and reconstructing ideological hegemony and myths about law through the creation of symbols. This compels sociologists to understand and interrogate visual codes, the impact they have on behaviour and the power structures or accounts of the world they support. These tasks are ever more important in a world saturated by images and seduced by the ability to circulate them widely and instantaneously. Even more compelling to socio-legal scholars interested in how the law operates from the margins is the power of the image to subvert or challenge prevailing accounts of law which fudge the distinction between law on the books and experiences of it.

REFERENCES Asimow, Michael, Steve Greenfield, Guilermo Jorge, Stefan Machura, Guy Osborn, Peter Robson. 2005. ‘Perception of Lawyers - A Transnational Study of Student Views on the Images of Law and Lawyers’. International J. of the Legal Profession 12, 407. Berger, John. 1973. Ways of Seeing. London: BBC and Penguin. Biber, Katherine. 2018. In Crime’s Archive: The Cultural Afterlife of Evidence. London: Taylor & Francis.

Sociology of legal images  213 Bourdieu, Pierre. 1990. Photography: A Middle-Brow Art. Cambridge: Polity Press. Capers, Bennett. 2006. ‘On Justitia, Race, Gender and Blindness’. Mich. J. Race & Law 12, 203. Cresswell, Timothy. 1992. ‘The Crucial “Where” of Graffiti: A Geographical Analysis of Reactions to Graffiti in New York’. Environment and Planning D: Society and Space, 10(3), 329–44. Curtis, Denis and Judith Resnik. 1986. ‘Images of Justice’. Yale LJ 96, 1727. Douzinas, Costas. 2000. ‘The Legality of the Image’. The Modern Law Review 63(6), 813–30. Douzinas, Costas. 2008. ‘Sublime Law: On Legal and Aesthetic Judgements’. Parallax 14(4), 18–29. Douzinas, Costas and Lynda Nead (eds). 1999. Law and the Image: The Authority of Art and the Aesthetics of Law. Chicago, IL: University of Chicago Press. Flessas, Tatiana and Linda Mulcahy 2018. ‘Limiting Law: Art in the Street and Street in the Art’. Law, Culture and the Humanities 14(2), 219–41. Goodrich, Peter. 1986. Reading the Law: A Critical Introduction to Legal Method and Techniques. London: Blackwell. Goodrich, Peter. 2011. ‘Screening Law’. In Marit Paasche and Judy Radul (eds). A Thousand Eyes: Media, Technology, Law, and Aesthetics. Oslo: Sternberg Press, 145–68. Goodrich, Peter. 2012. ‘The Foolosophy of Justice and the Enigma of Law’. Yale Journal of Law and Humanities, 141–78. Goodrich, Peter. 2014. Legal Emblems and the Art of Law: Obiter Depicta as the Vision of Governance. Cambridge: Cambridge University Press. Graham, Claire. 2003. Ordering Law: The Architectural and Social History of the English Law Court to 1914. London: Routledge. Haldar, Piyel. 2008. ‘Law and the Evidential Image’. Law, Culture and the Humanities 4(2), 139–55. Halsey, Mark and Alison Young. 2006. ‘Our Desires are Ungovernable: Writing Graffiti in Urban Space’. Theoretical Criminology 10(3), 275–306. Harris. Jonathan. 2001. The New Art History: A Critical Introduction. London: Routledge. Jay, Martin. 1999. ‘Must Justice Be Blind? The Challenge of Images to the Law’. In Costas Douzinas and Lynda Nead. Law and the Image: The Authority of Art and the Aesthetics of Law. Chicago, IL: University of Chicago Press. Jay, Martin. 2002. ‘Cultural Relativism and the Visual Turn’. Journal of Visual Culture 1(3), 267–78. Legendre, Pierre. 1994. Dieu au Miroir. Étude Sur l’Institution des Images. Paris: Fayard. Loizos, P. 2000. ‘Video, Film and Photographs as Research Documents’. In Martin W. Bauer and George Gaskell (eds). Qualitative Researching with Text, Image and Sound. London: Sage. MacNeil, William P. 2007. Lex Populi: The Jurisprudence of Popular Culture. Stanford, CA: Stanford University Press. Manderson, Desmond. 2015. ‘The Metastases of Myth: Legal Images as Transitional Phenomena’. Law and Critique 26(3), 207–23. Mezey, Naomi. 2011. ‘Law’s Visual Afterlife: Violence, Popular Culture and Translation Theory’. In Austin Sarat (ed). Imagining Legality: Where law meets popular culture. Alabama: University of Alabama Press, 65–99. Mitchell, W. J. T. 2013. Iconology: Image, Text, Ideology. Chicago, IL: University of Chicago Press. McKay, Carolyn. 2018. The Pixelated Prisoner: Prison Video Links, Court ‘Appearance’ and the Justice Matrix. London: Routledge. Mnookin, Jennifer L. 1998. ‘The Image of Truth: Photographic Evidence and the Power of Analogy’. Yale Journal of Law & Humanities 10(1), 1–74. Mohr, Richard. 1999. ‘In Between Power and Procedure: Where the Court Meets the Public Sphere’. In Marit Paasche and Judy Radul (eds). A Thousand Eyes: Media Technology, Law and Aesthetics (Berlin: Strenberg Press, 2011). Moran, Leslie. J. 2009. ‘Judging Pictures: A Case Study of Portraits of the Chief Justices, Supreme Court of New South Wales’. International Journal of Law in Context 5(3), 295–314. Moran, Leslie J. 2015. ‘Judicial Pictures as Legal Life‐writing Data and a Research Method’. Journal of Law and Society 42(1), 74–101. Moran, Leslie J., Emma Sandon, Elena Louzidon and Ian Christie (eds). 2012. Law’s Moving Image. London: Routledge. Mulcahy, Linda. 2010. Legal Architecture: Justice, Due Process and the Place of Law. London: Routledge. Mulcahy, Linda 2013. ‘Imagining Alternative Visions of Justice: An Exploration of the Controversy Surrounding Stirling Lee’s Depictions of Justitia in Nineteenth-Century Liverpool’. Law, Culture and the Humanities 9(2), 311–29. Mulcahy, Linda. 2015. ‘Docile suffragettes? Resistance to Police Photography and the Possibility of Object– Subject Transformation’. Feminist Legal Studies 23(1), 79–99. Mulcahy, Linda. 2018. ‘Revolting Consumers: A Revisionist Account of the 1925 Ban on Photography in English and Welsh Courts and its Implications for Debate about Who is Able to Produce, Manage and Consume Images of the Trial’. International Journal of Law in Context 14(4), 559–80.

214  Research handbook on the sociology of law Mulcahy, Linda and Emma Rowden. 2019. The Democratic Courthouse: A Modern History of Design, Due Process and Dignity. London: Routledge. Nead, Lynda. 2002. ‘Visual Cultures of the Courtroom: Reflections on History, Law and the Image’. Visual Culture in Britain 3(2), 119–41. Pauwels, Luc. 2010. ‘Visual Sociology Reframed: An Analytical Synthesis and Discussion of Visual Methods in Social and Cultural Research’. Sociological Methods & Research 38(4), 545–81. Resnik, Judith and Dennis Curtis. 2011. Representing Justice: Invention, Controversy, and Rights in City-states and Democratic Courtrooms. New Haven, CT: Yale University Press. Rose, Gillian. 2016. Visual Methodologies: An Introduction to Researching with Visual Materials. London: Sage. Sarat, Austin. 2011. ‘What Popular Culture Does For, and To, Law’. In Austin Sarat (ed). Imagining Legality: Where Law Meets Popular Culture. Alabama: University of Alabama Press, 1–21. Sherwin, Richard K. 1995–1996. ‘Introduction to Picturing Justice: Images of Law and Lawyers in the Visual Media’. University of San Francisco Law Review 30, 891–901. Sherwin, Richard K. 2011. ‘Law’s Screen Life: Criminal Predators and What to Do about Them: Popular Imperatives From Screen-Based Reality’. In Austin Sarat (ed). Imagining Legality: Where Law Meets Popular Culture. Alabama: University of Alabama Press, 107–32. Sontag, Susan. 2003. Regarding the Pain of Others. London: Penguin. Tagg, John. 1988. The Burden of Representation: Essays on Photographies and Histories. Minneapolis: University of Minnesota Press. Vismann, Cornelia. 2008. ‘Image and Law – A Troubled Relationship’. Parallax 14(4), 1–9. Watt, Gary. 2013. Dress, Law and Naked Truth: A Cultural Study of Fashion and Form. London: Bloomsbury. Young, Alison. 2005. Judging the Image: Art, Value, Law. London: Psychology Press. Young, Alison. 2013. Street Art, Public City: Law, Crime and the Urban Imagination. London: Routledge.

17.  The sociology of legal professions Lisa Webley

INTRODUCTION The legal profession has been subject to increasing sociological and socio-legal investigation since the 1980s, although enquiry into the nature of the legal professions started much earlier.1 Some studies have examined lawyers’ role in society with particular focus on the maintenance of the rule of law and access to justice (Abel and Lewis 1988a, b2). These studies address macro questions about the functions of lawyers in society and meso questions about the work of lawyers in particular settings (for example, family lawyers, barristers’ clerks). Other studies have engaged with lawyer professionalism, legal ethics and lawyer regulation. Others still have engaged with the make-up of the legal profession, concerns about social reproduction and a lack of diversity in the profession. This chapter will address each of these themes. Each section is necessarily brief and provides an overview rather than a comprehensive account of the issues.3 I hope that the chapter will be an access point to the extensive literature on the legal professions and the work of scholars of the sociology of the legal profession. This chapter will use two major thematic priorities in the sociology of the legal profession to address key drivers in this field over the past forty years, namely concerns about the increasing segmentation and stratification of the legal profession and the extent to which the profession is no longer, if it ever was, a single professional grouping with a shared purpose and professionalism. It will begin by considering the literature on the make-up of the legal profession through the lens of social reproduction and attempts to diversify its composition. In doing so it will examine the literature on workplace culture and how this impacts differentially on lawyers. It will then consider the role of legal professionalism to examine the purpose of the profession including its role in access to justice. I use the term legal profession to denote the broadest range of legal professionals, unless stated otherwise.

1

  Scholars working in this field are drawn from a range of disciplines and frequently work in multidisciplinary teams. It is difficult to identify a purely sociological body of work in any strict sense. Many scholars would consider themselves to be socio-legal rather than sociological. I have used the term in the widest sense to capture all work that draws upon sociological methods and theories, regardless of the scholar’s preferred disciplinary label. 2   The three volumes by Abel and Lewis in 1988 and 1989 are watershed publications that drove the sociology of the legal professions subdiscipline, and remain the starting point for many sociologists of the legal professions. 3   Given the brief nature of this handbook and word count constraints, studies have generally been mentioned only once, even where they are relevant to other points made elsewhere in the chapter.

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WHO: COMPOSITION, DIVERSITY, EQUALITY AND INCLUSIVITY Scholars of the sociology of the legal profession have focused considerable attention on the composition of the profession. Different jurisdictions obviously have different demographic profiles of lawyers; some, such as England and Wales, have a very diverse pool of law graduates that may advance into the legal profession: 36% of law graduates are from minority ethnic backgrounds (BAME)4 and 68% female, a far greater proportion than population census data. But over time, as professionals progress through the professional hierarchy, any given cohort becomes increasingly homogenous with a pivot towards historically dominant groups: white men from higher socio-economic groups (Solicitors Regulation Authority 2020)5. This holds true in studies across the Anglo-common law world. The trajectory from diversity to homogeneity cannot be explained by demographics alone, given that for more than a decade law graduates have been a very diverse population in many jurisdictions. Were the trickle-up theory of diversification of personnel within the profession to have been accurate, then the pipeline of female and BAME lawyers would have reached the senior echelons by now (McGlynn 2000; 2003; Sommerlad 1994; Thomas 2000; Wald 2010; Webley and Duff 2007). Alternatively, were the business case for diversity to have been made out, and if it worked to ensure that the most talented were appointed, then one would have anticipated a more representative group of lawyers in the senior levels of the profession (Rhode 2000; Sandefur 2007; Webley 2017). Neither trickleup theory (change over time) nor the business case for diversity (firms are incentivised to hire and promote lawyers from diverse backgrounds so as to maximise profits) have been that successful to date. Scholars critical of the business case for diversity assert that a focus on the profitability of diversity reduces concerns about equality and fairness to the vocabulary of the market, and where a business case cannot be made then social reproduction of dominant groups is de facto accepted as the rational outcome (Ashley and Empson 2013; Ackroyd and Muzio 2007; Braithwaite 2010; Scullion et al. 2010; Sommerlad 1998; 2002; 2012). They argue that this does little to address the high levels of attrition that persist at each level of career advancement, and a larger proportion of BAME and female lawyers remain stuck in the more junior levels. They point to structural inequality within the profession and argue that root and branch reform is needed to provide for genuine equality of opportunity. Much of this work reveals the underlying economic assumptions that drive professional discourse. It also lays bare limited engagement with systemic discrimination and highlights that the responsibility for inequality is all too often centred on the

4   The term ‘BAME’ is used here as it is common terminology in a UK context to denote those who are from Black, Asian and/or minority ethnic backgrounds. In some countries the term of art would be ‘people of colour’ or ‘minorities’. 5   The Solicitors Regulation Authority is the professional regulator for solicitors, the largest branch of the legal profession in England and Wales. This chapter has sought to reflect studies from a range of jurisdictions although remains English centric. You may access diversity statistics here: https://www.sra.org.uk/sra/equality-diversity/diversity-profession, last accessed 19/6/2020.

The sociology of legal professions  217 individuals affected by structural inequality, labelling it as a product of individual choices (Tomlinson et al. 2013). Greater diversity within the legal profession, or any profession, is not simply a function of the diverse pool of applicants to enter the profession. It is also a function of who holds power within the profession and how that power is used when hiring candidates, providing them with development and promotion opportunities and, in turn, providing them with opportunities to use power to hire and develop more junior colleagues (Bolton and Muzio 2007; Dinovitzer and Hagan 2014; Duff et al. 2000; Holmes 1990; Menkel-Meadow 1986; Rhode 2001a; Shiner 2000; Smithson and Stokoe 2005; Sommerlad et al. 2013; Thornton 1996; Webley and Duff 2016). There is limited evidence that power is being redistributed to those from underrepresented groups (Hagan et al. 1991; Pierce 2002). This is interesting in that lawyers are acutely aware of power in the context of inter partes negotiations, although apparently unaware of the power dynamics operating within their own organisations. There is scant evidence of reflection on how power pervades workload allocation, performance assessments and promotion rounds. Without such an understanding, structural barriers to advancement are unlikely to be overcome. That is not to say that the profession has sought to block change. On the contrary, there have been extensive efforts to address ongoing inequality, to uncover unconscious bias and to reform elements of the profession to make it more inclusive. Yet a number of important subjective proxies for excellence still hold some sway resulting in social reproduction (Shiner 2000; Webley and Duff 2017). Proxies drive behaviour and culture, thus correct identification and use of relevant proxies are necessary if the profession is to retain and promote people fairly and on merit (Malleson 2003; Rackley 2007; Sommerlad 2015). The subdiscipline is full of examples of how proxies for excellence and effectiveness differentially affect minorities and valorise dominant groups, including school grades (rather than grades more proximate and relevant to legal practice), university attended when hiring (Webley et al. 2016) and at the promotion stage the prioritisation of winning ‘new business’ rather than maintaining client relationships (Gorman 2005; Hagan 1990; Kay and Hagan 1995; 1998; 1999; Pearce et al. 2015). These lead to differential outcomes for women and minority lawyers (Dinovitzer et al. 2009; Dixon and Seron 1995; Gorman 2006; Gorman and Kmec 2009; Kay and Hagan 1995; Thornton 2007). Qualitative investigations provide many insights into the barriers to entry and progression for non-traditional dominant groups (Sommerlad et al. 2013; Tomlinson et al. 2013; Wright et al. 2014). For example, BAME lawyers are concentrated within the ‘less prestigious’, or rather the less well remunerated, parts of the legal profession; they are more likely to work in sole or small firm practice than are white solicitors, and there is evidence to suggest this is because it is harder for them to secure ongoing career development opportunities within other sectors in the profession (Webley et al. 2016). Similar studies examining gender differences have concluded that unconscious bias, a lack of powerful networks and the challenge of inflexible working practices are blockers to female advancement (Holmes 1990). Sexual stereotyping and sexual harassment also play a role (see particularly, Sommerlad 2006; Sommerlad et al. 2013; Webley and Duff 2007, cf. Hakim 2000). Other factors are also implicated including socio-economic and educational background in part given the pronounced link between class and race in UK society.

218  Research handbook on the sociology of law Less obvious negative cultures, such as long hours in the office (regardless of productivity) and the privileging of certain types of work over other necessary but less valued work, are not as obvious, but lead to systemic inequalities that have remained stubbornly intractable (Ashley and Empson 2013; Sommerlad and Sanderson 1998), patterned on a middle class, white male archetype against which all are assessed. Studies on the lived experience of women are replete with examples of the perceived lack of female commitment to full professional vocationalism given their (potential) status as mothers (Collier 1998; Epstein 2000–1; Sommerlad and Sanderson 1998; Thornton 1996).6 Sites of gender inequality are often also sites of more widespread inequality for minority lawyers (Gorman and Kay 2010; Neal and Johnson 1996; Webley et al. 2016). A number of studies have examined the experience of minority lawyers in practice (Kim and Zhao 2014; Wald 2008; Wilkins 2004; Wilkins et al. 1996). Others have focused on law firm culture and the social structure of the profession (Heinz and Laumann 1982; Heinz et al. 2005; Holmes 1990; Ladinsky 1963). The research suggests that the more a lawyer deviates from the archetype, the more likely they are to suffer less favourable treatment and the more likely they are to be challenged by traditional legal practices and systems (Pierce 2002). The intersectionality of protected characteristics can lead to multiple layers of disadvantage. Some of the literature focuses on the emancipatory potential of education to develop the next generation of lawyers’ awareness (Boon et al. 2001; Nicolson 2005; Webb 1999). There is a developing literature on unconscious bias and mechanisms to uncover underpinning ideologies that are not neutral, but favour dominant groups over newer entrants within studies set out in this section. The solutions that have been proposed by the profession have also been consistent and largely modelled on the business case for diversity – the economic benefit of ‘unlocking the talent’ within the profession. These approaches have their limitations. Many of the profession’s examinations are based on single case studies, making it difficult to know whether any positive effects are a product of the intervention or an independent variable. The quantitative evidence is also not particularly robust, unlike the evidence of disadvantage in the form of a wage gap in a range of contexts that cannot be explained by observable characteristics (Neal and Johnson 1996; Urwin et al. 2013), with some exceptions (Tomlinson et al. 2019). There is relatively limited quantitative evidence on what will and will not lead to increased diversity. Much of the profession’s discourse suggests that agency rests with the lawyer rather than with the firm. Concerns about social reproduction and the ongoing power of dominant groups are not unique to the legal profession, of course, but they are pronounced, persistent and antithetical to a profession that is the guardian of the rule of law and a champion in the fight against discrimination. In the next section I shall consider the literature on the profession’s role in promoting access to justice and their changing role in society to consider the ways in which the profession’s notions of professionalism are contested.

6

  It is striking how consistent the findings are across multiple studies, jurisdictions and decades, even given the efforts by the profession to change workplace culture and to encourage inclusive practices.

The sociology of legal professions  219

WHAT, HOW AND WHY: THE LEGAL PROFESSION’S ROLE AND PROFESSIONALISM One challenge of seeking to explore any professional grouping is that its diversity, while a strength for generating interesting findings, also makes categorization and explication difficult. The legal profession is not a homogenous entity, even within jurisdictions, and cultural and legal constructs play an important role in defining differences between jurisdictions. Sociologists and socio-legal scholars have compared and categorised the legal professions in multiple ways. Some have examined legal professions on the basis of their functions (adviser, representative, advocate). Others have considered one or more branches of the profession (solicitor; barrister; clerk7; notary; legal executive, paralegal; judge). Employment status has been important (private practice lawyer working in a firm or inhouse, alone or with others, working only with lawyers or in a multidisciplinary partnership; self-employed; employed by a firm; employed by the state and/or having the status of civil servant). There are also distinctions to be drawn between lawyers who accept instructions from all clients who approach them and those who seek out or select certain types of clients, such as cause lawyers who use the law as a tool to seek change in particular settings. Many studies focus on lawyers who have a particular disciplinary practice area (family; criminal; civil liberties and human rights; commercial; domestic; international; and so on). There are comparative studies of lawyers in different jurisdictions, particularly drawing out similarities and differences between common law and civil law lawyers (Abel and Lewis 1989). These are few in number yet important, as they reveal ways in which legal cultures determine permissible and impermissible roles for lawyers that otherwise are rarely interrogated. An important component of the literature on the sociology of the legal profession has been an exploration of the role of the legal profession within civil society, engaging with a functional analysis of the legal profession and its contribution to the maintenance, strengthening and/or erosion of the rule of law.8 Sociologists and socio-legal scholars have engaged with the profession’s role in providing a means by which individuals and groups may gain access to justice, enforce rights against the state and hold state actors to account, by which citizens may emancipate themselves or be emancipated from discrimination and harm (Abel and Lewis 1988a; 1988b; 1989). They have explored the role of lawyers in facilitating business interests and fueling the economy and their approach to practice (for example: Flood 2011 and 2016; Loughrey 2011, 2014), sometimes embedding ongoing social and economic inequalities in society, sometimes uncovering and removing them. These literatures rarely overlap, which is emblematic of the stark differences between lawyers who provide legal help to the public and those that serve corporate clients. Much of the sociology of the legal professions from the 1980s–2000s in Europe and the common law world addressed concerns about unequal access to legal advice, assistance and representation (Moorhead et al. 2001; Paterson et al. 2003a and 2003b; Sanderson and Sommerlad 2011). The expansion and then retraction of civil legal aid systems has

7

  For example, on barristers’ clerks, a very niche and small section of the legal profession see Flood, 1983. 8   See chapter 8 on the sociology of the rule of law for further details.

220  Research handbook on the sociology of law been a prominent lens through which this has been researched (Goriely 1994). These studies provide evidence of the waning influence of political and economic liberalism as successive governments in many countries introduced neoliberal reforms to embed market economics and consumer choice within the legal system and legal services (Webley 2015). They have brought a sharp focus to the segmentation of the legal profession, distinguishing between those who provide services to the public and those who provide services to commercial entities. It is argued by some that the differences between them are now so great that they are almost separate professions. They use different dispute resolution mechanisms and courts, they have distinctive models of legal practice. Training has become increasingly narrow in the latter stages of legal education. Networks tend to be bounded and there are limited opportunities for high street lawyers and city commercial lawyers to intermingle. In many countries, a private practice fee paying model of legal service runs alongside either a state subsidized or funded legal aid system or a pro bono ethical duty on lawyers to provide free advice to the public. The rule of law is usually taken to require that all citizens must have access to the justice system (Abel and Lewis 1988). Access to justice is itself a contested term: is it access to legal advice, to assistance, to a dispute resolution mechanism of some kind or to court adjudication (Genn 2012; Maclean et al. 2015)? Are lawyers the guardians of legal rules, requiring a determination of the law in all disputes so that rights are asserted and reinforced (Twining 1993) or are they solution focused and settlement orientated to maximize their clients’ outcomes and minimize the upset, cost and the risk to their clients?9 Although the role of lawyers in providing help may be debated, there is agreement that for a client to make informed choices they must have access to legal help at a cost they can afford. In many jurisdictions the legal aid system emerged as part of a new welfare system post Second World War via a state/private practice partnership. Over time this partnership has broken down and its decline has been chartered in numerous studies that set out the effects on the profession (Sommerlad 2001), on the profession’s clients or would be clients in social and health outcomes (Genn 2019), on the justice system and on the rule of law (Sommerlad, 2004). Studies have considered the quality and cost of legal aid and the opportunities it affords clients (Moorhead et al. 2001; Paterson et al. 2003a and 2003b; Sanderson and Sommerlad 2002) as well as new entrants into legal aid provision including not for profit agencies (Moorhead 1998; Sommerlad 1999a and 1999b; Sommerlad and Sanderson 2013). Subsequently, the political turn in many countries has led to withdrawal by the state from poverty law (Sommerlad 1995), a return to the discourse of pro bono and to notions of self-help for those with legal needs (Genn 2013; Moorhead and Sefton 2005; Sommerlad 2008 and 2009; Trinder et al. 2014). As part of this role in access to justice there has been a lively debate and a body of research on the ethical duty of lawyers to provide pro bono service to clients who otherwise could not afford legal help (Abel 2010; Abbey and Boon 1997; Boon and Levin 1999; 9

  This debate has become more acute as governments in many countries have sought to divert disputes away from the courts and into alternative dispute mechanisms (ADR). Most ADR mechanisms are private and there are concerns that this may be embed inequality rather than reinforce justice for all. Sociology of the legal profession scholars often find it challenging to gain access to these sites in order to study them.

The sociology of legal professions  221 Boon and Whyte 1999; Galanter and Palay 1995; Nicolson and Webb 1999; Webley, 2000). Opinions are divided on whether pro bono provision is a moral responsibility, an ethical imperative (Luban 1988), or good commercial sense. Once again, business motivations are posited as the mechanism to drive pro bono and lawyers appear divided on their role in society. Pro bono has tended to be provided differently by those in commercial legal practice (via grants to law centres, a supply of trainee solicitors to advice clinics) than by those in social and welfare law practice (via direct provision of legal services for no fee). Approaches to pro bono mirror political views on pro bono; those who consider pro bono as an ethical duty themselves provide pro bono assistance, whereas those who view it as a commercial cost tend to donate funds to advice clinics instead. These differences of conception go to the heart of lawyer professional identity and notions of professionalism. Professions are defined by a set of markers, including the ability to self regulate, to set for and insist on high standards from their members, and a governance system that allows for admission, sanction and removal from practice. Professionals distinguish themselves from technicians by reference to a specialised body of knowledge, skill and expertise and education and training that develops and maintains this, and duties to clients that go beyond those expected of mere service providers. This is often conveyed through the language of ethics and the existence of a code of conduct (Abbott 1983 and 1988; Rhode 1981). These markers help to instil standards and particular types of behaviour, build community and public trust and confer legitimacy. Studies indicate that the markers may assist lawyers to justify their profession’s autonomy and to capture and retain exclusivity in a market (Abel 1981; Hutchinson 1998, 175; Wallace and Kay 2008). Some have suggested that the rules are as much an act of self-interest as a recognition of the need for high ethical rectitude (Abel 1981; Hutchinson 1998). Others have been more charitable, pointing to balance of expectations between lawyer and client (Paterson 2012). There is limited evidence that codes of ethics are a major driver of lawyer behaviour (Maiman et al. 1999). They appear to provide a mechanism for ‘collegial influence’, a means to set expectations and convert the profession’s norms into a way to reason through and then to justify the decisions reached. The codes may have more influence in smaller legal practices; the culture in large commercial firms is considered the dominant force in determining lawyer behaviour (Galanter and Palay 1991). Some suggest that the process of legal education may dull ethical sensitivity in would-be lawyers unless there is active engagement with ethical discourse and reflection (Menkel-Meadow 1991; Sommerlad et al. 2015) or socialise students in a very narrow way (Sherr and Webb 1989). Others are of the view that legal education may have a negative impact on lawyer wellbeing (Collier 2016; Strevens and Field 2020). Education and training, work place culture and ethics and values all appear to collide to create a context in which it is difficult for some lawyers to thrive. One of the few relatively stable features of the legal profession, self-regulation, has also come under intense pressure in a number of jurisdictions. Self-regulation has been reimagined as either independent regulation one step removed from the professions or semi-independent regulation. Self-regulation, the power to determine education and training pathways, who is admitted into the profession, how complaints are handled and disciplinary processes undertaken have been viewed as the sacred preserve of professionals. Yet governments have gradually introduced greater market competition into professional

222  Research handbook on the sociology of law contexts, including the removal of blanket bans on non-members performing some legal work. The most vivid example of this is in England and Wales (the Legal Services Act 2007), but a number of other jurisdictions have started to relax unauthorized legal practice rules to admit others into the legal arena. A range of studies have examined the impact of these changes, including as regards quality, costs, outcomes and perceptions. The results have been mixed, providing no clear picture of the effect of these changes on the clients. It has also been difficult for researchers to uncouple whether any impacts on the justice system have been a function of these changes or the reduction or withdrawal of legal aid provoking a large number of self-represented litigants. However, studies demonstrate clearly the negative impact that these changes have had on some sections of the legal profession, including on their perceptions of their role and their value. Some have argued that lawyer professionalism is in a state of crisis (Hanlon 1999), others have found it simply to have been altered as the social construct between lawyers and others has shifted (Abel 2003; Paterson 2012; Pearce 2005). As Rhode said (in 2001b), the main problem as regards professionalism may not actually be the professionalism of lawyers, but the lack of consensus about what actually is the problem. Paterson argues that the debate about professionalism has been rendered to a binary choice between commercial practice and altruism, which has created a problem where none need exist. Professionalism has always involved a tension between self-interest and more altruistic values. It involves obligations (expertise, access, service, public protection) and benefits (status, reasonable rewards, restricted competition, autonomy) (Paterson 1996). Paterson argues that tension may have been heightened, but not to the extent that professionalism is in crisis. Professional autonomy and self-regulation could be argued to have allowed old hierarchies to persist, power to go unchallenged and social reproduction to continue. Some have benefited from a shift to a more business orientated model of legal practice, but have continued to enjoy the privileges associated with the former public service professional model. There has been less opportunity for this for public serving lawyers, high street lawyers in those jurisdictions that once had access to legal aid funding which has since been withdrawn. They have been subject to a range of market forces, including competition with non-lawyers or online services for clients, that those in commercial practice have not yet experienced. They continue to compete with other law firms, but that competition has been embedded for some time. Regulatory change in the legal sector was a natural step in an ideological turn away from professions to service providers operating within markets when the profession was unable to meet public demand for low cost legal help when state funding was withdrawn. Whether it has really challenged conceptions of professionalism quite in the way that some scholars have suggested is unclear (Paterson 2000). The rise of commercial legal practice has coincided with state intervention to open up the legal services ‘market’ and move away from legal professional self-regulation and autonomy (Sommerlad 1999b). This has left some lawyers in difficult territory, positioned between their sense of the public good and/or public service, and yet characterized as actors within a market for legal services (Abel 1989, 2003, 2008 and 2009). For some it has been a liberation that has allowed them to self-identify as professional business facilitators. For others it has challenged their conception of professionalism and self-worth. It has also left some potential clients with a lack of access to help and limited knowledge that their problems could be resolved through recourse to law. In many instances they

The sociology of legal professions  223 have been left unaided (Genn 1999). The professional identity forged after the Second World War, whether real or imagined, was underpinned by state funding. The review of Abel and Lewis’s original work from 1988, some 30 years later, is timely and should allow an important point of comparison to see just how much has changed and how much has stayed the same. Volume I contains a series of country reports each charting the development of the profession (Abel et al. 2020). Volume II will provide a comparative thematic analysis which will provide real insight into the changes wrought in the intervening period.

CONCLUSIONS The body of work that makes up the sociology of the legal profession provides a rich picture of the range of people who enter the profession, how they work, their role in society and their values. It exposes a stratified, segmented profession that is increasingly heterogeneous in the context of the nature of the work it undertakes and the way in which it works. It reveals a diversity of purpose among its members, including a range of conceptions of what it is to be a lawyer. Studies have highlighted a range of very different identities held by those who have been through very similar forms of initial training, suggestive of the dominant force of legal workplace culture. Yet, those within those workplaces have divergent views on whether people can thrive and succeed in the profession based on merit or demographics. This holds true across the range of work places and practice areas indicating that one’s views of the profession and what it is to be a lawyer are heavily influenced either by one’s background or by the experience one has in the profession as a result of one’s background. Further studies are required to explore why background remains such a dominant lens through which legal professionals are seen and judged. This takes the sociology of the legal professions back to fundamental sociological questions.

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PART III SOCIOLOGY OF LEGAL DISCIPLINES

18.  Sociology of constitutional law and politics Paul Blokker

INTRODUCTION: SOCIOLOGY AND CONSTITUTIONS Constitutions and constitutionalism are increasingly important objects of inquiry for sociologists (Blokker and Thornhill 2017; Febbrajo and Corsi 2016; Galligan and Versteeg 2013). Traditionally, and to some extent true even today, sociology has tended to show little interest in constitutions or constitutionalism, even if early sociological and philosophical works proposed some form of theory of constitutional legitimacy (Thornhill 2017, 494). If Durkheim recognized a structural framework for societal foundation in the form of law, which was to lead to integration and stability (cf. Galligan 2008), Weber, in his sociology of the state and of authority, stressed the importance of the embedment of legal structures in a wider societal culture, resulting in the legitimacy of the societal order which mere legality cannot provide (cf. Schmidt 2012, 247, 250). Scholarly discussions with important sociological components continued in the German Weimar Republic, in the works of such authors as Rudolf Smend, Hermann Heller, and Carl Schmitt. If Schmitt tended to reduce (the legitimacy of) the constitution to political decisionism, for Heller the constitution provided a normative, integrative framework for social interaction while, for Smend, the constitution combined integrative functions with normative, value functions (Vorländer 2017, 211–13). In the post-Second World War period, a sociology of constitutions appeared of less concern, but by the 1980s a certain revival of sociological interest in constitutions could be discerned. This is not least due to the fact that in the latter half of the twentieth century constitutions and constitutionalism became a core dimension of any modern society; a distinctive understanding and implementation of constitutional forms was now the ‘preferred system of socio-political organization’ (Thornhill 2017, 494). The post-war history of modern, (democratic) societies indicates the emergence of constitutionalism as an (almost) universally accepted legal foundation for national government. Most prominently in recent ‘waves’ of democratization, for instance in Southern Europe in the 1970s and 80s and in East-Central Europe from the 1970s onwards, constitutionalism has played a highly conspicuous role. Indeed, recent processes of democratic transition, or systemic restructuring, have virtually without exception revolved around the consolidation of political systems based on strong and enforceable constitutional norms. Indeed, there now exists an effective expectation that all national polities will be formed and obtain legitimacy as constitutional states. This recent rise of constitutionalism means that, globally, states tend to converge around a relatively uniform, legal-constitutional model (Klug 2000; Hirschl 2004; Stone Sweet 2008). In particular, first, most transitional and post-transitional states are marked by deep interaction between domestic and international legal norms, such that domestic constitutional law is often backed by international norms. Partly for this reason, second, most states ascribe a high degree of importance to the judicial branch, 230

Sociology of constitutional law and politics  231 especially to constitutional courts or supreme courts, which acquire responsibilities for constitutional review of statutes, and for ensuring conformity between domestic and international law. This is particularly upfront in the experience of European integration. As a result, many new constitutions involve a repositioning in the classical relation between the branches of government, and the growing force of the judiciary means, in the formation of constitutions, that the classical functions of the constituent power are diminished in scope and that, after their formation, the formal authority of legislatures is weakened. The emergence of a universal legal-constitutional model of society is related to a tendency towards judicialization in modern societies, which includes a ‘profound shift of power away from legislatures and toward courts and other legal institutions around the world’ (Ferejohn 2002, 41). Judicialization further refers to a growing importance of legal norms in social and political interaction, not least in the form of human rights, shifting political demands, and claims away from representative and participatory democratic institutions to the legal arena. There are exceptions, and manifestations of resistance, to the diffusion of a strictly legalistic constitutional model. In Europe, some states which originally endorsed strong judicial power, for instance Hungary and Poland, have demonstrated strong reactions against this constitutional model (cf. Bucholc 2019). Generally, nonetheless, recent decades have witnessed a remarkable constitutional revolution which, globally, has been strikingly similar in its institutional results. Indeed, in addition to defining the structure of new states, the model of constitutionalism marked by a strong judicial emphasis has even been able to penetrate polities (such as the UK) that are traditionally resistant to notions of higher-order judicial power. Sociologists have been applying various and diverse approaches to study this emergence of, and heightened significance of, legal constitutionalism and judicialization. A number of the most prominent approaches will be discussed, ranging from: Luhmannian perspectives (Kjaer 2014; Thornhill 2011; Teubner 2012); Bourdieusian analyses (Madsen 2014; Vauchez 2015); critical-theoretical works (Brunkhorst 2014); conflict-theoretical endeavours (Blokker 2017; Klug 2017); to cultural approaches (Vorländer 2002, 2017; Gephart 2016; Witte and Bucholc 2017). Below, I will first discuss the most significant sociological approaches regarding the analysis of constitutions and subsequently briefly engage with their conception of politics.

THE SOCIOLOGY OF CONSTITUTIONS: APPROACHES Luhmannian Perspectives A prominent and relatively predominant source of inspiration in the sociology of constitutions is systems theory, and in particular the work of Niklas Luhmann. A number of the core contributions (Sciulli 1992; Teubner 2012; Thornhill 2011; Kjaer 2014) (see also Blokker and Thornhill 2017) show a significant relation to Luhmann’s approach and its core sociological lens; that is, of functional differentiation. A sociological approach questions a strict, formalistic understanding of constitutions and of constitutionalism, which emphasizes a distinctive form (not least, written) and substance (higher law) as frequently found in legal studies and understandings. Instead, sociologists tend to understand societies

232  Research handbook on the sociology of law as intrinsically grounded in dimensions of forms of organization and order that take on or reflect the functions of constitutions. In other words, rather than a strict, formalistic definition, we find in sociological approaches a more flexible understanding of constitutions which, in the Luhmannian view, reflects a set of functions (both legal and political) (cf. Thornhill 2011, 9). Indeed, a sociological approach is concerned with the distinctive ways in which societies relate to key societal dimensions such as public manifestations of power, legitimation, social integration and the forms of division of labour within societies, and how such dimensions evolve historically (cf. Thornhill 2011, 10). Sociological approaches inspired by Luhmann tend to understand such questions by emphasizing how societies consist of functionally different systems, which themselves contain a plethora of subsystems. Such (sub) systems perform specific functions around which they create distinctive semantic structures. An important implication of this view is that political constitutions are only one manifestation of a range of constitutional formations related to distinctive subsystems. In particular, in the work of Gunther Teubner, this relativation, or sometimes outright scepticism, towards political constitutions is rather upfront, leading to the analysis of constitutions of privately constituted subsystems, both on the subnational and supranational levels (Teubner 2012). The flexible understanding of constitutions allows the Luhmannian approaches to assign distinct constitutional characteristics to transnational formations of law. Constitutional dimensions are attributed both to private arrangements, in terms of, for instance, lex mercatoria (see Teubner 2012), as well as to public international institutions (see Thornhill 2016b). Bourdieusian Analyses In terms of structuralist approaches, the work of Pierre Bourdieu is also increasingly being used in the sociology of constitutions, even if not as extensively as Luhmann’s work, and frequently with a focus on human rights (Madsen 2011) and international law (Madsen 2018), and less so directly on constitutions, with the exception of a European constitution (Vauchez 2008; Wiener 2008). Despite the lack of a systematic engagement with constitutions and constitutionalism, the Bourdieusian socio-legal approaches offer a range of significant insights for the sociology of constitutional orders. In the analyses of the Danish sociologist Mikael Madsen, Bourdieu figures prominently; Madsen endorses a reflexive sociology on the basis of Bourdieu’s work (Madsen 2011, 2013b and 2018; Cohen and Vauchez 2008; Cohen 2016; Vauchez 2008, 2015). From one angle, a reflexive sociology of (constitutional) law understands constitutions, constitutional norms and human rights as objects of political and social mobilization, whilst as objects of sociological analysis, from another (Madsen 2013b, 81). On one hand, constitutional norms and rights are part of real life social and political struggles regarding the constitution of authority, legitimacy and freedoms. On the other, constitutional and legal orders clearly contain normative, universalist dimensions as vehicles for accountable, nonarbitrary forms of rule and, as such, form important objects of scholarly analysis. The second, normative, dimension is clearly not distinct from the first, conflictual, one. While some legal and political-scientific scholars claim the normative and universal dimensions are not contestable, reality proves otherwise (cf. Koskenniemi 2019). This is particularly evident

Sociology of constitutional law and politics  233 on the international and supranational levels, where constitutions and constitutionality remain highly contested concepts (Lawrence 2013). A key emphasis in the Bourdieusian sociology of (constitutional) law is how the ‘force of law is both legally and socially constructed’ (Madsen 2018, 190). Central concepts in the work of Bourdieu are hence utilized to study the force of law. This includes the notion of ‘field’, in particular that of ‘juridical field’, and the consequences of such a field for the social positions and possibilities of action (which Bourdieu referred to as habitus). An important thrust in this type of work is, then, how a range of legal actors is educated and socialized (acquiring ‘cultural capital’), develops distinctive understandings of the law, creates lasting relationships on its basis, and operates to institutionalize legal frameworks of power. A good example is the historical investigation into the emergence of the European Convention of Human Rights, and later the European Charter of Fundamental Rights, as instances of struggles for the promotion of a distinctive set of legal regimes and European constitutional order (Madsen 2014). Antonin Cohen has explored the attempt to create a European political constitution along similar lines, analysing the political mobilization around and the social construction of European constitution by what he calls a ‘transnational community of legal professionals/political entrepreneurs’ (Cohen 2011). Critical Analyses The work of the social theorist Hauke Brunkhorst is sui generis, in that he develops a critical social theory of constitutionalism by setting out a dual perspectival reconstruction of the social processes that generate constitutional norms. Brunkhorst argues that constitutions are the result both of deep-lying evolutionary processes of societal adaptation (as held by Luhmannian constitutional sociology) and, equally, of revolutionary advances in legal norm construction. Indeed, Brunkhorst defines constitutions as ‘normative constraints on adaptation’ (Brunkhorst 2014, 43). The revolutionary element in constitutional normativity, he claims, is the outcome of long processes of normative learning, such that founding constitutional documents are correlated with socially embedded processes of reflexivity and consciousness formation. Norms resulting from such processes, however, rarely obtain immediate recognition and realization, but instead form ‘normative constraints’ within which subsequent social development takes place. In Brunkhorst’s approach, he distinguishes between two types of evolutionary change; one that is incremental and cumulative and ‘leads to an ever better adaptation of the social system to its environment’ (2014, 1) and another type which entails rapid and revolutionary change, and results in the creation of new, normative constraints on social and political action (2014, 1). In Brunkhorst’s view, modern law is not merely the result of a process of gradual evolutionary adaptation or functional differentiation of society, but is, equally, the consequence of social and political action in the form of struggles regarding existing constitutional norms and institutions. Brunkhorst invokes Koskenniemi’s idea of a dual mindset regarding the law, a ‘Kantian’ and a ‘managerial’ one (Koskenniemi 2007). The two mindsets closely relate to two principal constitutional imaginaries that are generally said to orient modern constitutionalism; that is, order and emancipation (cf. Loughlin

234  Research handbook on the sociology of law and Walker 2007). According to Brunkhorst, the Kantian mindset regards the language of ‘radical change and constitutional revolution’, focused on ‘individual and collective emancipation’, whereas the managerial mindset is the language of ‘reform, of the stabilization or preservation of the existing, of evolutionary incrementalism and gradualism’, concerned with ‘individual empowerment’ (Brunkhorst 2014, 37). Brunkhorst then uses ‘ ‘constitution’ and ‘constitutionalism’ not only functionally for the designation of the stabilization of social systems, but also normatively as referring to the mindset of social actors’ (Brunkhorst 2014, 43, emphasis in original). Material Approaches A distinctive political-economic approach to constitutions is that of ‘material constitutionalism’ (Goldoni 2019; Goldoni and Wilkinson 2018). The notion of the ‘constitution in the material sense’, as developed by theorists since Marx, is at the heart of this approach (Goldoni 2019, 72). Rather than reducing constitutions to mere epiphenomena of capitalist relations of production, the material approach understands constitutions as forms of coupling of law and politics or, in other words, an interactive relation between the formal and the material constitution. The latter consists in the dominant or hegemonic social and political forces and their ideological positions (Goldoni 2019, 76). In other words, the ‘formation of the material constitution by political and social forces is the outcome of the condensation of these forces around certain specific political aims’ (Goldoni 2019, 77). The hegemonic political and social forces utilize, on the one hand, the constitutional order to pursue their fundamental goals while, on the other, they are bound by the limitations and constraints of that very same order (Goldoni 2019, 77). The material approach has the great advantage that it is attentive to the power relations that shape the social and constitutional order. The constitution is not simply the reflection of normatively superior, higher order principles, as in a legalistic perspective. Neither is it the outcome of pure political will, as in economic-deterministic perceptions, nor is it an extension of the logic of functional differentiation. Rather, the constitutional order develops in a dialectical fashion through struggles between political and social forces, on the one hand, and the constraints and premises of the existing constitutional order, on the other. Conflict-Oriented Perspectives Conflict-oriented approaches emphasize political conflict and contestation regarding legal, constitutional and human rights arrangements (Blokker 2017; El-Ghobashy 2008; Klug 2000 and 2017). Conflict-oriented approaches share with the abovementioned Bourdieusian one a sceptical position with regard to the idea that the legal-constitutional mode of societal integration is necessarily of a stable and lasting form. Rather, intuition is that it consists of a one-sided form of integration in which the contestable, and hence political, nature of the whole arrangement is downplayed. As stressed by Klug (2017), a key dimension regards the relation between the legitimacy of a constitutional settlement and the capacity of constitutions to mobilize, channel and coordinate power (Klug 2017, 67). Conflict-oriented approaches analyze the processes that lead to constitutional

Sociology of constitutional law and politics  235 settlements and human rights institutions, and emphasize the continuous role of political, juridical and societal forces in upholding or, alternatively, challenging such orders. Specifically related to constitutional orders, and in some ways following Luhmannian insights, these approaches are driven by the idea that constitutions fulfil a number of functions (constitutive, self-limiting and regulatory, but also symbolic, self-governing and emancipatory), and that the current predominance of legal constitutionalism stresses some functions (self-limiting, regulatory) over others (in particular, symbolic, emancipatory and self-governing). Emphasis is put on how contemporary orders have been constituted, and also on the extent to which they remain open to contestation, subject to internal tensions, and portray a depoliticizing thrust. Contestability tends to be intensified through the rise of constitutional pluralism, seen as the increased prominence of constitutional arrangements beyond the nation state (cf. Blokker 2017). Cultural Perspectives Cultural perspectives on constitutions and constitutionalism are particularly well developed in the German context (see Brodocz et al. 2014; Vorländer 2002 and 2017; Vorländer and Brodocz 2006; Witte and Bucholc 2017; Schmidt 2012; Scholl 2006; Gephart 2016; Suntrup 2018; see also Přibáň 2005; Blokker 2010). The insight provided by cultural approaches is that constitutions cannot be merely understood as ‘sets of legal norms’; they are ‘central references for legal-cultural traditions entangled in multiple fashion with specific arrangements of order and cultural practices, with worlds of symbols, imaginations, and narratives, interrelated to collective memory and questions of identity, and (therefore not in the last place) object of social and political clashes’ (Witte and Bucholc 2017, 267). Constitutions need, hence, not only socio-legal analysis, but also cultural-sociological analysis. The focus is not least on constitutional culture, understood in sociological fashion, and analytically broken down in various dimensions. Gephart (2016) and Suntrup (2018), for instance, distinguish between normative, symbolic, narrative, epistemic, ritual and organizational dimensions. As Hans Vorländer explains, a cultural analysis of constitutions ‘avoids functionalist and structuralist macro-explanations’ and focuses on symbolic dimensions and institutions understood as ‘orders which form meaningful interfaces between guiding principles and structures of action and communication’ (Vorländer 2017, 213). A cultural analysis hence examines the ‘interplay of interpretations, practices and symbolic representations’ without which institutions (including constitutions) would not produce social order and structure social interaction (Vorländer 2017, 213). Constitutions are hence far from stable, time-honoured institutions; rather, they make ‘claims of order’ and ‘claims to validity’ that need to be constantly acknowledged and reproduced and may be questioned in social interaction (Vorländer 2017, 215). In a similar fashion to Suntrup and Gephart, Vorländer distinguishes between different, culturally relevant, dimensions of constitutions – the communicative-discursive, expressive, performative, and ritualistic forms of realisation of constitutions (Vorländer 2017, 220). A significant insight of cultural analysis, against the thrust of some of the functionalist and universalistic approaches, is that constitutional cultures, and hence their interpretation and implementation in contextual practice, differs between societies in a meaningful way. A cultural-sociological

236  Research handbook on the sociology of law approach hence, and perhaps more than the other approaches discussed here, calls for a comparative and historical perspective (Vorländer 2017, 221; Witte and Bucholc 2017).

THE SOCIOLOGY OF CONSTITUTIONS AND POLITICS A core dimension of the sociological study of constitutions regards the relation between politics and law. A crucial question regards how normative dimensions relate to factual situations of power relations, as well as of societal functions. Some of the abovementioned approaches towards constitutional sociology (in particular those taking a systems perspective) address this question in a counter-intuitive but, perhaps, not surprising way, and have the tendency to expel the political dimension of constitution from their sociological examination. In this way, such approaches tend to dissolve the problématiques of the political (that is, regarding the dimension of the rules of the life in common) as well as that of politics (the social distribution of public goods as well as government) into processes of societal evolution. As briefly described below, some of the (systems/functionalist) approaches tend, in this, to converge with normative, legal approaches in the understanding of constitutional norms as universal and as ‘free-floating’ (disattached from actual politics ‘on the ground’) (cf. Goldoni 2019). As we will see, in contrast, other approaches in the sociological study of constitutions tend to return to the issue of political power and conflict over the rules of the political community, but tend to do this with different emphases; for instance, by focussing on politics in the form of a dialectical interaction between law and politics, by understanding politics in terms of the formation of hegemony, by depicting politics as struggles of a material, political-economic kind, or by understanding politics in the form of contrasting visions of the constitutional order. The Transformation of Politics The political problématique includes questions of collective autonomy, the legitimation of power, political sovereignty and the possibility of democracy as a modern system of rule, while politics is concerned with irreducible conflict over perceptions of the common good. A sociology of constitutions in a universalistic, functionalist vein tends to understand politics as ultimately dissolving or transforming into legal structures and, in this, to subscribe to an apolitical or depoliticized view of sovereignty, governance and rulemaking grounded in background assumptions regarding the authority of extrapolitical, higher principles (cf. Thompson 2015; Přibáň 2012). Two dimensions appear to be particularly important in this context. First, the state (and political power and sovereignty in the classical sense) is either taken to be less relevant or relativized (as just one of the subsystems of society, increasingly marginalized in the global context) or understood as deeply entangled with global constitutional law (as owing its very existence to deep integration into international legal structures). As Goldoni argues, there is a ‘recognition of the exhaustion of the state’s centrality’ (Goldoni 2019, 82). Second, in universalist approaches, there is an insistence on the normative force of constitutional principles that transcends states (and, ipso facto, of politics), while such approaches perceive such principles as ‘free-floating’; that is, disattached from politics and socio-economic relations

Sociology of constitutional law and politics  237 (cf. Goldoni 2019, 83). In an alternative but not altogether different understanding, the view is that the thrust of constitutional principles lies in their functional operation (in terms of stabilizing power, underpinning integration or political unity, providing the conditions for citizenship) (cf. Thornhill 2019). Hence, the understanding of politics is that its classical manifestations are now replaced by more legalistic structures. For instance, in the constitutional sociology of transnational constitutional arrangements, such views are formulated as the idea that: The increased significance of transnational structures vis-à-vis nation-state structures should not necessarily be understood as implying de-politicisation, but merely calls for a rethinking of the different dimensions of the concept of the political (Kjaer 2009, 541).

In the seminal Constitutional Fragments of Gunther Teubner, one can equally find the comment that ‘maybe we should abandon self-determination as “emphatic republicanism” and see it as only one of several possibilities for constitutional foundation’ (Teubner 2012, 61). Admittedly, it is clear that Teubner remains very much aware of political dialectics and conflict, which he indeed suggests to examine in the form of ‘self-contestation’ (rather than in that of ‘political representation’) in transnational constitutional arrangements (Teubner 2018). Be that as it may, the general thrust in Luhmannian approaches appears to put functional developments and processes prior to politics. The dimension of the political, seen in Arendtian terms – that is, as consisting of an ongoing debate between human beings with ultimately irreducible and variegating understandings about the rules that hold together the political community, emphasizing historically and situated rationalities – seems to be understood as largely out of touch with current times. At its core, most Luhmannian sociological constitutionalism has a natural tendency to shift attention outside of the formal political sphere of the state (Thornhill is an exception) towards forms of non-public, non-political, societal constitutionalism (cf. Sciulli 1992; Teubner 2012). Teubner’s work and, in a different way, in the work of others working in this tradition, such as Chris Thornhill and Poul Kjaer, suggests the end of constituent power as a political founding force of political communities. It argues that it has been replaced with multiple, private rather than public, constitutional subjects in the global society (Teubner 2012) or, alternatively, with an increased prominence of a transnational universal rights catalogue as ultimate answers or limits to political questions (Thornhill 2012). As Thornhill argues, ‘we can conclude that in the contemporary political system constituent power has been supplanted by rights as the dominant source of legitimacy’ (2012b, 375, italics in original). Politics as Conflict The Bourdieusian, and the conflict-oriented approaches in particular, stress the fact that it is impossible to avoid the question of self-rule or collective autonomy, and of irreducible conflict over competing conceptions of the common good, even in times of globalized, post-national modernity. In the Bourdieusian perspective, the role of social conflicts is stressed, and Bourdieu’s work is interpreted as providing a way of linking agency with structure, a relation which is understood in dialectical fashion (Madsen 2013, 83). Law is the outcome of processes of mobilization and societal structuring,

238  Research handbook on the sociology of law which involve ‘multiple and conflicting actors’ (Madsen 2013b, 83). The claim is that a Bourdieusian approach, despite its structuralist dimensions, is able to establish a link between practices and legal structures. Madsen stresses the dynamics of law and human rights, and understands human rights and human rights practices ‘as part of a set of power relations which produce symbolic power . . . divisions of labour (law/politics) and the battle over the legitimate form of production’ (Madsen 2013b, 86). While such insights focus on human rights, the latter can be equally understood as important dimensions of constitutional orders in a wider sense. Indeed, Madsen’s views may be applied to practices related to constitutional norms in general, which equally involve multiple actors. An important dimension of the Bourdieusian perspective is a form of genealogy of existing (juridical) hegemony, as for instance, in the careful investigation and reconstruction of the forces that have built the European human rights and legal order since 1945 (Cohen 2007; 2016; Madsen 2014). Conflict-oriented approaches are particularly interested in constituent or constitutive forces, how human action produces (constitutional) law and human rights, and how existing orders remain contestable and fragile. In this, human struggles and conflicts are situated in specific historical and societal-cultural contexts, which allow cultural and societal differences to be examined and which show the specific constraints and possibilities actors face (Klug 2017, 68). As Klug argues, the value of a conflict-oriented constitutional sociology lies in its attention to the interaction between established constitutional orders, and their capacity to shape identity and manage political social conflict, on the one hand, and the always existing, ongoing conflicts regarding the status quo, on the other. The emphasis in conflict-oriented approaches is hence less on the orderly and structural functions of constitutions, and more on constitutional fragility and change, which are understood as the result of ongoing struggles between a range of political, social and legal actors who hold widely different views on the role and functions of constitutions (Blokker 2017; Blokker 2020). Politics as Critique If the functional approaches emphasize structural, integrating aspects of constitutions and conflict-oriented approaches, rather emphasize the fragility of such arrangements, the critical approach of Brunkhorst tries to combine insights from both in an attempt to analyze the ‘dialectics of Enlightenment’. Brunkhorst understands constitutional realities as the outcome of social evolution, which leads to a ‘better adaptation of the social system to its environment’ (Brunkhorst 2014, 1) and produces normative constraints with which social actors ‘have to cope’ (Brunkhorst 2014, 2). They are, at the same time, subject to revolutionary change. The latter consists of ‘normative learning processes of social groups who demand rights for the victims of history’ (Brunkhorst 2014, 2–3). By his insistence on the revolutionary dimension to evolutionary process, Brunkhorst inserts a dimension of ‘democratic self-determination’ into a functionalist, evolutionary, adaptative understanding of societal development, and hence an emphasis on political will. This will is expressed through what he calls a Kantian mindset, which utilizes the existing constitution to make emancipatory claims. Hence, constitutions are understood as both constraining (repressive) and emancipatory orders (Brunkhorst 2014, 37). The contrast with Luhmannian approaches lies in the dual investigation of ‘constitutions as

Sociology of constitutional law and politics  239 evolutionary universals’ in their functional roles as stabilizing constraints on societies, and as normative expressions of self-determination by social actors. Politics, in this, takes the form of claims for justice (freedom and equality) within the constraining framework of law (Brunkhorst 2014, 43). Politics as Material Relations In the material approach to the constitution, the focus shifts away from explicitly political forces, and the emphasis is rather on a wider range of ‘governing’ forces, which comprehend the material/socio-economic dimension. Formal constitutions are both the outcome of processes of production and reproduction of societal order, and constrain, regulate such processes. In other words, there exists an internal relation between formal and material constitutions, which is based on processes of differentiation and specification (Goldoni 2019, 78). Differentiation relates to the distinction between the rulers and ruled, as well as to the ‘political unity of the state’, which is ‘achieved via the organisation and distribution of roles and functions across society’. This concerns a process with an ‘inherent political quality as it cannot but be organised via collective groups or subjects’ (Goldoni 2019, 78). Specification, in the materialist approach, is related to the identification of those political and social forces that are essential for societal governance (Goldoni 2019, 79). A significant concept is that of the (Gramscian) notion of hegemony, which indicates both significant political forces, but equally needs to consider socio-economic forces (Goldoni 2019, 81). For the materialist approach, politics and the political domain are not self-standing, autonomous dimensions, but are deeply entangled with material forces. In Wilkinson’s words, ‘the dynamic of political ordering is conditioned by the material relation between democracy and capitalism as real social forces’ (Wilkinson 2017, 29). Politics as a Cultural Process In cultural approaches, politics takes place within the semantic-symbolic frameworks of society. Hence, the constitution is not only an ‘evolutionary universal’ in that it generally provides a link between law on one hand, and society and politics, on the other, but needs to be understood equally as an expression and carrier of cultural meanings (Witte and Bucholc 2017, 268). Politics then becomes an activity in which culturally distinct meanings are expressed within the larger constraining framework of constitutions. What is evident in the cultural approach is the strong emphasis on a comparative dimension. Culture is not merely a part of a ritualistic dimension in an anthropological or Durkheimian fashion expressing cultural particularities of distinct societies, but includes a practical dimension. Such an emphasis on practice acknowledges the need for reproductive social action (cf. Scheppele 2017), but equally emphasizes ‘discursive practice’ within, for instance, public debates, by means of political statements and claims and in the form of constitutional conflict (cf. Brier 2006). Discursive practice does not merely allow us to focus on specific cultural particularities in the form of a distinctive legal culture, it equally permits us to place emphasis on existing interpretative conflicts and claims for justification and change, and hence highlights the incomplete nature of societal integration and the always existing possibility of conflict (Witte and Bucholc 2017, 276).

240  Research handbook on the sociology of law

CONCLUDING REMARKS The sociology of constitutions is becoming an increasingly developed and sophisticated field of research, which emerged as a response to the extraordinary extension of constitutionalism in recent decades. As indicated in this chapter, the field is rich in its diversity of analytical approaches towards, and understandings of, constitutions, which equally came through in the way in which the relation between politics and law, and political sovereignty, are understood. Sociological reflections on constitutionalism are of great value, in that they help to critically reconstruct the emergence of a distinctive form of domestic constitutionalism in the post-Second World War era, as well as illuminate its connection to transnational and global constitutional developments. Currently, the sociology of constitutions is becoming indispensable in the analysis of what can be seen as the crisis or, at the very least, transformation of the post-war legalistic and transnational constitutional paradigm, as witnessed in formidable political and populist reactions to both domestic constitutional and international legal institutions (cf. Blokker 2017; Koskenniemi 2019; Thornhill 2020). Key focal points in the sociology of constitutions – such as an orientation towards conflict between social forces on different levels, the analysis of constitutional functions (such as inclusion, legitimacy, normative orientation and semantic clarity), the variety of available constitutional meanings and mind sets, and the critical scrutiny of interactions between law and politics – are crucial instruments for a critical and reflexive analysis of the state of constitutionalism in our dynamic times.

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242  Research handbook on the sociology of law Teubner, Gunther. 2012. Constitutional Fragments: Societal Constitutionalism and Globalization. Oxford: Oxford University Press. Teubner, Gunther. 2018. ‘Quod Omnes Tangit: Transnational Constitutions Without Democracy?’ Journal of Law and Society 45, S5–S29. Thompson, Grahame. 2015. ‘Review Essay: Socializing the Constitution?’. Economy and Society 44(3), 1–14. Thornhill, Chris. 2011. A Sociology of Constitutions. Constitutions and State Legitimacy in HistoricalSociological Perspective. Cambridge: Cambridge University Press. Thornhill, Chris. 2012. ‘The Formation of a European Constitution: An Approach from Historical-Political Sociology’. International Journal of Law in Context 8(3), 354–93. Thornhill, Chris. 2016a. ‘The Sociological Origins of Global Law’. In Alberto Febbrajo and Giancarlo Corsi (eds). Sociology of Constitutions. London: Routledge, 99–124. Thornhill, Chris. 2016b. A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure. Cambridge: Cambridge University Press. Thornhill, Chris. 2017. ‘The Sociology of Constitutions’. Annual Review of Law and Social Science 13, 493–513. Thornhill, Chris. 2020. ‘Constitutionalism and Populism: National Political Integration and Global Legal Integration’. International Theory 12(1), 1–32. Vauchez, Antoine. 2008. ‘The Force of a Weak Field: Law and Lawyers in the Government of the European Union (for a Renewed Research Agenda)’. International Political Sociology 2(2), 128–44. Vauchez, Antoine. 2015. Brokering Europe: Euro-Lawyers and the Making of a Transnational Polity. Cambridge: Cambridge University Press. Vorländer, Hans. 2002. Integration durch Verfassung. Wiesbaden: VS Verlag für Sozialwissenschaften. Vorländer Hans. 2017. ‘Constitutions as Symbolic Orders. The Cultural Analysis of Constitutionalism’. In Paul Blokker and Chris Thornhill (eds). Sociological Constitutionalism. Cambridge: Cambridge University Press, 209–40. Vorländer, Hans and Andre Brodocz (eds). 2006. Die Deutungsmacht der Verfassungsgerichtsbarkeit. Wiesbaden: VS Verlag für Sozialwissenschaften. Wiener, Antje. 2008. The invisible constitution of politics. Cambridge: Cambridge University Press. Wilkinson, Michael. 2017. ‘Public Law and the Autonomy of the Political: A Material Critique’. LSE Law, Society and Economy Working Papers 17/2017. Witte, Daniel and Marta Bucholc. 2017. ‘Verfassungssoziologie als Rechtskulturvergleich’. Zeitschrift für Rechtssoziologie 37(2), 266–312.

19.  Sociology of transnational constitutions Chris Thornhill

THE SOCIOLOGY OF CONSTITUTIONS Constitutions and Classical Sociology In recent years a large body of literature has appeared that addresses the functions and foundations of constitutional law from a specifically sociological perspective. There is nothing categorically new in this theoretical development. It is possible to reconstruct a lineage of sociological reflection on constitutional law that reaches back to the origins of sociology itself. Indeed, as discussed below, there are clear continuities between recent work on the sociology of constitutions and legal-political perspectives that possessed defining importance in early social theory. Reflections on the social foundations of constitutional law were set out by key precursors of academic sociology. For example, Montesquieu, Smith, Hume, Burke, Savigny, Hegel and Ranke all sought to explain the sources of constitutional law by examining its attachment to socially ingrained patterns of personal motivation and institutional evolution. Analysis of constitutional law also acquired prominence in leading works in the earlier and later period of classical sociological inquiry. For example, Marx’s On the Jewish Question (1843/44). Weber’s Economy and Society (1921/22) and Durkheim’s Leçons de sociologie (1950) (translated into English as Professional Ethics and Civic Morals) contain sections that propose a distinctive sociological description of constitutional laws and the sources of their authority. These works presented analyses of the first modern constitutions created in and in the longer aftermath of the French Revolution, and they devised sociological methods to explain why constitutional norms had assumed a central position in modern society. In each instance, what characterizes certain lines of constitutional inquiry as distinctively sociological is that they pose questions about the conditions under which constitutional law produces authority for a political system by observing the structural reasons that lead persons subject to constitutional law to recognize it as binding, and by interpreting how recognition of constitutional obligations impacts on society as a whole. Consequently, the sociological approach to constitutional law is defined, in essence, by a sociological conception of law’s legitimacy. The sociological approach to constitutional law differs in key respects from more conventional types of constitutionalism. Constitutionalism typically explains constitutional law as the manifestation of popular decisions, expressed at certain key junctures in the history of a polity and a people. Moreover, constitutionalism typically interprets constitutional law as a hierarchical system of norms within the state, to which reference must be made in ensuring the procedural and substantive legitimacy of legislation. By contrast, it is characteristic of the sociological approach to constitutions that, in broad terms, it analyzes constitutions, not as the result of single acts or normative agreements, but as motivational aspects of social structure. On this account, the constitution is produced by deep shifts in society, and its ability to create legitimacy for a political 243

244  Research handbook on the sociology of law system depends on the extent to which it integrates actors in different parts of society in a stable normative order and, in so doing, stabilizes social structure as a whole. Accordingly, the legitimacy of the constitution is a highly variable and contingent construct: it can only be explained through analysis of social motivations, through scrutiny of the broad consequences of legal recognition, and through reconstruction of the wider social processes that shape the formation of legal obligations. Nonetheless, what separates the sociology of constitutions from purely instrumental or political-economic analysis of law is that it insists that the legitimacy produced by constitutions is real, and it explains that modern societies show a distinctive reliance on constitutional norms for their cohesion. Given this broad contextual focus, sociological research on constitutionalism usually defines the legitimacy of a constitution as a quality that is not easily measurable, and it indicates that the legitimational functions of constitutional law need to be assessed in multiple societal dimensions. On this basis, the sociological approach to constitutions tends to contain three distinct emphases. First, the sociological approach to constitutions usually implies that the legitimacy of constitutional law results from the fact that it promotes the integration of society as a whole. The first sociological writings on constitutional law already attached importance to the ways in which public law helps to integrate members of societies exposed to processes of differentiation caused by the rise of capitalism. For example, Hegel viewed the constitution as legitimated by the extent to which it reinforces processes of rational integration for society, ordering the actions of social agents in spheres of society separated by divergent economic prerogatives (1970 [1821], 399). Marx argued that constitutional law integrates modern societies in a coercive or ideological fashion, detaching persons from an authentic understanding of their economic position and imposing false constructions of liberty into the minds of economic agents (1956 [1843]). Weber explained that constitutions obtain legitimacy by binding social actors into national communities, and by inducing collective motivations able to countervail the fragmentational pull of sectoral economic interests and conflicts (1921/22, 554, 558). Durkheim claimed that the legitimating function of constitutional law resides in the fact that it establishes rights and principles that connect individual agents in differentiated societies into the wider moral communities that support democracy (1950, 99, 123). Second, sociological accounts of constitutional law tend to call into question the principles of rational obligation that underpin more classical design-oriented or jurisprudential analysis of constitutional validity. In particular, sociological analysis tends to espouse a historical and a pluralistic view of the role of constitutional norms. Such analysis suggests that constitutional norms take effect in societies whose overarching form is defined by deep-lying patterns of social differentiation. Constitutions bear the deep imprint of such differentiation; they are formed by multiple contingent historical processes, and they occupy one place amongst the multiple normative environments and the multiple forms of rationality that differentiated societies contain. In a rather dialectical manner, therefore, sociological analysis tends both to promote a theory of constitutional integration and to relativize the claim that, in a differentiated society, a constitution can be created by one single deliberate act, setting one categorical normative order for all parts of society. This historical-pluralist perspective was central to sociological reflection on constitutions. Hegel viewed the constitution as a normative order that was formed by longstanding processes of historical evolution and that sits alongside and underpins the plurality

Sociology of transnational constitutions  245 of different freedoms that modern societies, in their differentiated historical form, have produced (1970 [1821], 348–9). Marx argued that a constitution has no claim to absolute normative primacy in society; its function is to provide ideological justification for existing economic practices and to preserve the differentiation of society’s function spheres. Durkheim claimed that the constitution results from the articulation of an individualistic impulse inherent in modern patterns of social interaction. As such, he indicated, the constitution deeply reflects the underlying differentiation of society as a whole, and its functions cannot be imputed to purposive acts of legal norm production, or even to acts of an exclusively legal nature (1950, 92). Weber adopted a more strictly state-centred approach to the system of public law, as he observed the constitutional state as the primary focus of social cohesion in a modern mass democratic society. However, he saw the constitution (typically) as a body of rational norms that assumes force in a relatively sequestered value sphere, adjacent to value spheres with parallel claims to validity. Indeed, the possibility that a society will possess multiple overlapping value spheres is central to Weber’s theory of social action and social motivation (1921/22, 17–19). In each case, the view was implied that the constitutions could only be adequately examined as the outcomes of social processes with a plurality of causes, not as simple and binding expressions of deductive principles. Third, the sociological approach to constitutional law reflects a deep scepticism toward more conventional understandings of constitutional democracy. Such analyses usually display a dual disposition towards democracy: they express a moral sentiment committed to promoting rational consensual government and shared political freedoms, but they reject the concepts of collective agency that are central to standard models of constitutional democracy. As a result, sociological analyses usually qualify the idea that democracy is a simple condition of collective self-legislation in which the constitution allocates powers to ensure that citizens are able to exercise their due rights as bearers of sovereignty. Most sociological analyses argue that democracy is a complex, contingent societal condition in which popular recognition for law and legal protection for human freedoms is secured through multiple procedures. On this basis, the constitution is perceived as a normative structure that provides legitimacy for the polity by extracting recognition for law in processes that do not immediately presuppose the rational participation of citizens, and in which the citizen forms the focus of legitimacy in a more oblique manner. This approach to democracy was central to sociological analysis of constitutions from the early nineteenth century onwards. For example, in the wake of the French Revolution, Hegel argued categorically in favour of a constitutional order in which the rational interests of citizens are represented in government. However, he claimed that such constitutional order is most effectively realized if the people themselves, as concrete citizens, are not actively involved in the production of law (1970 [1830], 468–69, 473). As mentioned, Marx explained that constitutions derive legitimacy for political systems purporting to be democratic by deluding citizens into imagining that government is framed by a legal structure that protects their fundamental rights and freedoms. Durkheim argued that democratic constitutions integrate citizens in the production of legitimate law, not through actual expression of the rational will of citizens, but by promoting patterns of lateral integration and a moral consciousness, in which citizens are able to find satisfactory reflections of their individual freedoms. For Durkheim, citizens only take part ‘from afar’ in the political deliberations that underpin democracy (1950, 120). Weber

246  Research handbook on the sociology of law argued that democratic constitutions acquire legitimacy by binding citizens into collective affiliations which secure relatively uniform motivations to stabilize the political system (1921/22: 140). In each case, early sociological accounts of constitutional law converged around the view that constitutional government is a condition that cannot be explained by a theory that formally abstracts the sovereign citizen as the unit agent of democracy. Instead, constitutional democracy appears as a reality in which collective authorization for law is produced in legal procedures which are only marginally conducted by particular social agents. Constitutions and Contemporary Sociology These three basic emphases in early constitutional sociology have survived in more contemporary endeavours to analyse constitutional functions through a wide-angled sociological perspective. As mentioned, recent years have witnessed a renaissance in sociological inquiry on constitutional law. Much of this research remains connected to the methodological threads that informed constitutional discourse in classical sociology. The early emphasis on examining constitutional legitimacy as the result of processes of social integration remains visible, for example, in the recent work of Hauke Brunkhorst. Brunkhorst argues that constitutions have proven vital to the construction of legitimacy for modern political systems because they articulate shared norms and shared patterns of solidarity, which are always embedded in the evolutionary form of human society (2002). As a result, constitutions set out deeply unifying principles of action and normative orientation for modern social agents. This emphasis on integration can be found in the works of Kim Lane Scheppele. Scheppele argues that constitutions take effect as part of an intersubjectively constructed social horizon in which some collective coproduction of law is a precondition of constitutional authority (2017). This emphasis on integration is visible in the works of Hans Vorländer (2002), Jiří Přibáň (2014) and Paul Blokker (2017) who argue, in diverse manner, that constitutions perform functions of symbolic integration. In certain respects, these approaches can be associated with Durkheim’s original theory of solidarity, as they explain the legitimational role of constitutions as residing in their ability to promote solidarity in highly differentiated social environments. This emphasis on integration can be seen in the works of Chris Thornhill, who – in the part of his work that addresses national constitutions – claims that constitutions build structures of differentiation and inclusion for national political systems (2011; 2016). The early emphasis on examining constitutions as normative orders with origins in the pluralistic historical form of modern society was emphatically restated in a body of research produced in Germany in the 1960s and 1970s. This research was partly initiated by Niklas Luhmann. Luhmann analysed the constitution as a textual corpus in which, through a long historical process of differentiation, the political system projects a self-description in which it can manage and rationally explain its differentiated form, and control its articulations with other social systems (1973; 1981; 1990). On Luhmann’s account, the constitution formulates norms of legitimacy that have only limited purchase beyond the political system itself, and the constitutional order of the political system sits alongside a plurality of legal orders that regulate those social exchanges that do not possess an eminently political quality. This approach expressly rejected the classical view

Sociology of transnational constitutions  247 of constitutions as texts that, once created through rational acts, express higher laws with binding force across all parts of society. This line of research was elaborated by Rupert Scholz, who argued that separate domains in society are marked by specific constitutional orders (1978). This pluralistic approach, implying the existence of multiple sources of constitutional normativity, has been elaborated and greatly expanded in recent years. It is now fundamental to, inter alia, the works of Gunther Teubner (1997; 2005), Karl-Heinz Ladeur (2002) and Marcelo Neves (2017). The early emphasis on examining democratic government as a political reality that is produced by transpersonal forces, in which collective acts of citizens are not centrally implicated, is now centrally reflected in the thought of Teubner (2012) and Thornhill (2018). Teubner argues that democracy is now most strongly realized at the micro-level of social formation, in constitutions that take effect in the differentiated functional spheres that society contains. Thornhill argues that democracy is now stabilized through multiple lines of political communication, in which the exercise of classical political rights only plays a partial role. Fundamental to both stances is Luhmann’s original claim that democracy is, in essence, a system of legal/political inclusion, which develops as the political system adapts to changing requirements for legitimation in complex societies. Both classical and contemporary sociological research on constitutions is defined by the conviction that constitutions do not create legitimacy through the simple articulation of norms for government institutions. For each perspective, constitutions pertain to a complex world of legal norms, produced through the differentiated form of society. For this reason, democratic constitutionalism cannot be seen as the simple result of the will of sovereign citizens, and it needs to be separated, at an explanatory level, from theories of popular sovereignty.

THE SOCIOLOGY OF TRANSNATIONAL CONSTITUTIONS Sociological analyses of constitutional law were usually concerned, initially, with the construction of constitutional norms in national settings. In the 1960s, no lesser authorities than McDougal (1968, 261, 266–7), Lasswell and Reisman argued that the ‘founders of modern sociology . . . rarely engaged in critical examination of international law’. Some earlier legal exponents of sociological constitutionalism were overtly hostile to international law, and they insisted on the status of constitutional law as a categorically national achievement (Schmitt 1940 [1939]). Many works in the recent renaissance of sociological constitutionalism have retained a primary focus on national constitutional laws. At the same time, it is a broad characteristic of contemporary constitutional sociology that it engages with processes of constitutional norm construction that take place outside national societies. As a subcategory of research on the general sociology of constitutions, there now exists a line of inquiry that can be characterized as the sociology of transnational constitutions. This research is marked by the endeavour to explain why constitutions in contemporary societies are frequently shaped by patterns of norm construction that cannot be attached to national constitutional agency. Such research explains, accordingly, how in many constitutions the original authors of law are distinct from conventional constitutional subjects – that is, from national bearers of constituent power, and from processes of will formation articulated by

248  Research handbook on the sociology of law national citizens. Such research has developed as a framework for explaining the dynamics of constitution-making that occurred during the democratic transitions in the 1980s and 1990s, in which new democracies generally converged around a standard constitutional model, linked to designs advanced within transnational normative communities. Such research is also designed to explain the fact that, largely due to such transnational expectations, constitution-making actors show increasing recognition of international principles and international human rights regimes, a fact that tends to elevate the standing of judicial bodies within the constitutional polity, binding acts of popular will formation by predetermined norms. Such research is also intended to capture, in its legal refraction, the wider context of globalization, which leads to increased interpenetration between national legal systems and increased integration of legal norms across jurisdictional boundaries. Sociological research on interactions between national constitutional norms and norms with a transnational dimension can be placed, broadly, into two separate categories. This research has gained expression – first – in a number of diffuse inquiries and publications, which throw sociological light on the transnational origins of constitutional principles and designs, but which are not centrally concerned with elaborating a sociological analysis of transnational law. This research has gained expression – second – in a more compact and interlinked body of research, which approaches constitutions with a transnational content with a specific view to elucidating their deep-lying social foundations. Category 1: World Polity and Global Courts In the first category, the world-polity theories of the Stanford School of Sociology mark out important parameters for analysis of transnational constitutional law. The Stanford School is a broad term used to describe a group of eminent sociologists based at the University of Stanford, who utilize a neo-institutionalist method to examine the construction of global society, accentuating ways in which different national polities are connected by patterns of normative convergence or isomorphism. Central to this body of research is the claim that the decades after 1945 witnessed the emergence of a world culture, in which increasingly generalized features were imprinted on institutional and economic systems within different national societies. This research is primarily focused on the formation of education systems, and it centrally addresses uniform patterns of integration and norm formation linked to the rapid expansion of mass education after 1950 (Meyer 1977; Meyer, Ramirez, Rubinson and Boli-Bennett 1977). However, this research also claims that this period saw the universalization of a common model of constitutional subjectivity centred around the construct of the individual citizen as a holder of generally defined rights and liberties (Meyer, Boli, Thomas and Ramirez 1997). On this account, the basic unit of democratic constitutionalism – the active citizen – was formed through a transnational process of norm creation, reflecting the rise of a world political culture. Also marginally linked to the sociology of transnational constitutions is a body of research that engages primarily with the changing role of the courts in contemporary global society. This research is concerned with the fact that many national constitutions impose a globally constructed design on the polity in question, so that many polities show increasing signs of deep normative congruence. In particular, this research addresses the

Sociology of transnational constitutions  249 fact that many polities are based on a constitutional template marked by the rising power of judicial institutions, which means that questions classically reserved for regulation by legislatures are increasingly transferred to powerful constitutional courts or supreme courts. As a result of this increase in judicial power, many polities are seen to acquire a distinctively transnational constitutional structure. This is the result of the fact that apex courts tend to be relatively open to international norms, and they frequently drive formal and informal processes of legal convergence, incorporating national political institutions in normative orders created by international courts, international organizations, and even by influential courts in other national polities. This field of research gained impetus in the 1990s in the works of Alec Stone Sweet (1997), which applied aspects of Georg Simmel’s sociology to analysis inter-institutional methods used for resolving political problems in polities with strong judiciaries. The sociological element in this research was later expanded, in a neo-Marxist direction, by Ran Hirschl and David Schneiderman. Hirschl developed the theory that the increasing judicialization of political decisionmaking through the rise of powerful national courts, linked to the directives of courts in the international arena, entrenches economic policy prerogatives within national societies that serve the interests of international elites (2004). Schneiderman extends this argument further, arguing that judicial constraints placed on national policy-making by courts, applying international norms, underscore the hegemonic position of powerful international actors, allowing global elites to dictate policy constraints to populations with weaker positions within the global economy (2008). These theories converge around a critical sociology of transnational judicialization, which revises earlier worldpolity theories to incorporate a hostile appraisal of the liberalization process that shaped constitution-making in the late 1980s and 1990s. Such critical sociological analyses of transnational judicialization are not unanimously accepted amongst legal observers. Many sociological analyses of transitional democracies have argued that globally authoritative norms serve to enhance or stabilize domestic constitutional arrangements. For example, Heinz Klug’s research (2000) is devoted to analyzing the constitutional processes that led to the consolidation of constitutional rule in South Africa. He uses both a historical-sociological and a global-sociological method, showing how global norms and national constitution-making processes intersected to sustain the new constitutional order after the end of the apartheid regime. Important researchers in Colombia, where the impact of international law on domestic politics is high, have also emphasized the beneficial role of transnational judicial actions in stabilizing constitutional norms (Rodríguez Garavito and Rodríguez Franco 2010). An alternative sociological approach to the impact of trans- and supranational judicial bodies on national constitutional law is evident in the theory of human rights regimes advanced by Mikael Rask Madsen. Using an elite-focused sociological method derived from Bourdieu and influenced by Yves Dezalay, Madsen argues that the increasing impact of transnational norms on domestic constitutions was shaped by the motivations of elite actors within national societies (2010; 2014). In particular, he concludes that many Europeans witnessed the emergence of liberalized legal elites in the 1960s and 1970s, who were not easily accommodated within national professional hierarchies. Such elites, he explains, attached their professional trajectories to transnational legal causes, promoting the reinforced recognition of international human rights law in domestic constitutional law. Similar arguments are also evident in the work of Antoine Vauchez (2014).

250  Research handbook on the sociology of law These lines of research contain manifest implications for transnational constitutional analysis, showing how policy choices and constitutional design preferences are predetermined by social and economic processes that originate outside the legal domain. Such research is largely concerned with elite actors, and it mainly opts for an agency-based theory of norm construction. As a result, this research is not strongly engaged with the legitimational functions of constitutions, and it is primarily focused on forces that causally shape constitutional law. Category 2: The Transnational Restatement of Classical Sociology Alongside this, a second body of research has recently acquired contours which uses a wider sociological lens to explain the increasingly transnational origins of constitutional law, addressing how the transnational content of constitutions is caused, not by personal acts or motives, but by shifts in social structure. Such research opens new terrain in sociological research on constitutions as it argues that the basic integrational and legitimational functions of constitutions do not apply solely to national political systems and environments. Indeed, the varying positions in such research converge around the claim that constitutions are now required to generate legitimacy for institutional entities with a scope that extends beyond classical national and jurisdictional boundaries. Despite this change of focus, however, this body of research displays clear continuities with classical sociological approaches to constitutional law. This body of research remains attentive to the distinctive legitimational functions of constitutional law, and it interprets transformations in the substance of constitutional law within a wider social constellation as a reflection of changes in the social processes and actions that actually require legitimation. Notably, such research reveals a tendency to reproduce the threefold emphasis of classical constitutional sociology. First, it examines the legitimational role of transnational constitutional law from a perspective that observes legitimation as closely connected with patterns of social integration. Second, it addresses the construction of legitimacy by transnational constitutional norms as a pluralistic historical process. Third, it reflects a relativization, or at least a nuanced qualification, of classical concepts of democracy, and it applies earlier cautious reflections on democracy to contemporary realities. Naturally, these emphases are not equally present in each contemporary position in transnational constitutional sociology. However, such research generally utilizes approaches and concerns found in earlier sociological inquiry as a framework to comprehend the transnational form of constitutions in contemporary societies.

CONSTITUTIONAL LAW AND INTEGRATION The persistent concern with the relation between constitutional law and social integration remains visible in a number of avenues of research that assess transnational constitutional laws. The most widely recognized theory of transnational constitutional law is that set out by Teubner. As discussed below, Teubner’s theory is essentially pluralistic in nature. It is designed to show that contemporary globalized society forms a reality in which central political institutions have lost regulatory prominence, and are not capable of imprinting

Sociology of transnational constitutions  251 uniform norms across all social spheres. As a result, society tends to fragment into a series of sectoral constitutions, focused on distinct functional spheres, and established through autonomous patterns of norm production. Global society as a whole acquires a multi-constitutional form, marked by the emergence of constitutional norms that preserve their status across national political or jurisdictional boundaries, yet which are focused on single functional domains – for example, media, health care, art, sport (2012). This analysis clearly opposes any assumption that constitutions act as points of reference for processes of pan-societal integration. Nonetheless, this approach retains a strong, albeit slightly submerged, attachment to theories that accord an integrational role to constitutions. It implies that the autonomous construction of sectoral constitutions facilitates the residual integration of social agents in societies marked otherwise by irrepressible tendencies towards fragmentation. It also implies that different sectoral constitutions tend to articulate with one another in an equilibrated manner so that, for instance, the norms contained in the constitution of science tend to adapt restrictively to the norms expressed in the constitution of the economy, or the norms articulated in medicine may, under some circumstances, place limits on the constitution of the economy (2017). On each count, Teubner’s theory reproduces, at least in remote resonance, the classical constitutional view that constitutional norms help to preserve the functional stability of society. Poul Kjaer has intensified the integrational claims in Teubner’s variant on transnational constitutional theory. He argues that, as modern society experiences increasing functional differentiation, there exists an increasingly strong imperative that social interactions, both public and private, should be subject to constitutional ordering in the form of formal organizations. For Kjaer, global society presupposes the formation of ‘multiple constitutions’, which are required both to construct internal order within the functional arenas to which they are linked and to establish the ‘possibility of stabilised linkages with other fields’ (2013, 113). An alternative conception of the relation between transnational constitutional law and social integration is presented by Brunkhorst. Closely linked to theories of rational integration and transnational citizenship set out by Habermas, Brunkhorst argues that the history of national societies has been punctuated by a series of legal revolutions in which, at each juncture, a more highly evolved expression is given to essential ideas of human freedom and solidarity (2014; 2017). From the twelfth century to the present, he explains, these ideas have given rise to constitutions or to legal texts with constitutional force, under which persons are integrated as citizens of increasingly rational (that is, free and solidaristic) social orders. Vital in this analysis is the claim that the ideas of freedom and solidarity expressed in constitutions possess universal implications, connecting all human beings in a cosmopolitan normative order. In consequence, national constitutional law inevitably contains inclusionary implications that surpass national constitutional systems, and it cannot, in its ultimate essence, be understood simply as the result of national acts of popular sovereignty. Brunkhorst ascribes particular importance to the rise of international human rights law after 1945, which he views as a set of documents in which the co-evolutionary nexus between national citizenship and global citizenship is expressed. In the post-1945 legal order, he explains, national constitutions necessarily unfold their legitimational claims on a transnational normative foundation, and they reflect the basic principle that the fully rational integration of citizens occurs as citizens comprehend themselves as subjects of laws that apply to all people: that is, as cosmopolitan citizens.

252  Research handbook on the sociology of law Closely related to this, Thornhill’s theory of transnational constitutions claims that contemporary constitutions incorporate normative principles constructed outside national societies for reasons that are deeply linked to the connection between legitimation and integration inherent in constitutional law per se. He argues that the eighteenth century revolutions that first established modern constitutions created expectations of inclusion amongst national populations, which national institutions themselves were not able to withstand, so that most national constitutions led directly to experiences of extreme intergroup conflict and, ultimately, to national authoritarianism (2016). It was only as national constitutions were coupled with principles of transnational citizenship, mainly expressed in declarations of international human rights law, that integrational pressures placed on national political systems by constitutional norms were softened, and the integrational impulses in classical constitutions could be realized. On this perspective, the basic units of national constitutionalism – citizenship, sovereign institutions, popular self-legislation, even national society itself – only approached full reality on the foundation of a transnational normative structure. For both Brunkhorst and Thornhill, therefore, national constitutions presuppose a transnational normative dimension in order to fully articulate their legitimational integrational essence. In each of these outlooks, constitutional law is intrinsically linked to the fact that societies rely on and are constructed through deep-lying processes of integration, either rational (Brunkhorst), functional (Teubner), or both rational and functional (Thornhill). Transnational constitutional law forms the basic integrational structure for global society, and societal integration is not fully possible without constitutional law with a transnational foundation. Implicitly, integration under transnational constitutional law is of a higher order than integration under national constitutional law.

CONSTITUTIONS AND HISTORICAL PLURALISM The pluralist impulse in classical sociology is also deeply embedded in sociological analysis of transnational constitutional forms. As mentioned, the primary exponent of constitutional pluralism is Teubner. Teubner’s intellectual trajectory began with a pluralistic analysis of processes of constitutional formation within national societies. Using Luhmannian concepts of systemic pluralism, he proposed the theory that, through the underlying process of functional differentiation, different societal spheres generate their own constitutional orders in which norms of private law frequently acquire constitutional rank in the regulation of different functional exchanges. In his later work, he extended this approach to incorporate an analysis of global legal forms, explaining how micro-level or sectoral processes of constitutional norm construction allow global society to react to its increasing complexity and its lack of a directive political centre. This perspective marks the apotheosis of the pluralistic tendency that was always inherent in constitutional sociology, and it identifies the production of constitutional norms as the result of highly acentric, non-monadic patterns of rational reflection and adaptation. On this view, constitutional laws are produced internally, within different function spheres, to regulate exchanges within those spheres that cannot be regulated by classical political institutions. Constitution-making is thus separated from the classical object of constitutional law: the state.

Sociology of transnational constitutions  253 Teubner’s approach to constitutionality as a pluralistic phenomenon has generated new subdivisions in the theory of transnational constitutional pluralism. Close to Teubner, Peer Zumbansen claims that transnational private law can create constitutionally authoritative norms, able to harden normative structures for exchanges of a global nature (2010, 184). Specific patterns of transnational sectoral constitutionalism have been identified and elaborated; for instance, in analysis of art by Graber (1998) and of health care by Krajewska (2018). More classical concepts of legal pluralism also find reflection in research on transnational constitutional law. The pluralist understanding of constitutional law is central to the works Boaventura de Sousa Santos, who presents his theory as part of a subversive strategy to defend and assert the rights of subaltern subjects; that is, of subjects who are marginalized from dominant legal discourses, especially in post-colonial contexts. While rejecting formal international law, Sousa Santos argues that democratic constitutional rights for marginalized groups are constructed from a mix of legal sources, including national law, customary law and international human rights (2002, 488). This version of transnational pluralism culminates in a theory of interlegality, which accentuates the important role of legal hybridization, caused by the interaction between global law and indigenous law in consolidating rights for non-dominant groups. A fusion of systemic pluralism and more classical legal pluralism is evidenced in the works of Marcelo Neves. Neves has reconstructed Luhmann’s theories of functional differentiation and legal positivization in the context of Latin American legal history, which he describes as peripheral modernity. He concludes that classical modes of constitutional balance, in which the political system is constrained by public law, are not consolidated in Latin America, and the constitutions of Latin American states have typically functioned either as mere formal texts or as symbolic adjuncts to authoritarian rule (1992, 145, 191). Neves eventually (2017) developed a theory of transconstitutionalism, which is designed to promote a system of constitutional metanorms, able to incorporate, and partly to integrate, the multiple, often conflicting, normative sites which he identifies in different societies in Latin America. Neither Brunkhorst nor Thornhill are typical pluralist theorists. Both argue that national legal systems tend to converge around relatively uniform norms. However, both claim that national constitutions assume legitimational force by promulgating normative ideas that do not result from simple constitution-making acts, reflecting an inherently pluralistic interaction between norms of national and norms of international origin.

CONSTITUTIONS AND DEMOCRACY Different lines of research concerned with transnational constitutionalism also reflect a nuanced scepticism with regard to classical theories of democracy. Indeed, these theories remain close to the moral politics of early legal-political sociology, as they typically combine a commitment to democracy with outlooks that dismiss as simplistic the categories of citizenship and popular sovereignty in which democracy is usually imagined. Scepticism regarding classical patterns of constitutional democracy is visible in the more pluralistic lines of sociological refection on transnational constitutions. Evidently,

254  Research handbook on the sociology of law Sousa Santos’s thought is centred around the claim that, in order to signal legitimacy, law must draw on energies beyond the arena of formal constitutionalism, and it must integrate multiple subjectivities into the domain of constitutional recognition. Implied in the work of Neves is the claim that a radical deformalization of law is essential for the construction of democracy. Most importantly, Teubner rejects the idea that democratically legitimated law can be created through simple acts of popular will formation. Central to his work is the implication that the capacity of institutions legitimated by sovereign acts of national peoples to regulate problems of world society is limited. Despite this, however, he proposes a theory of democracy that observes sectoral constitutions as the outcomes of functionally specific democratic acts, expressing constitution-making potentials within different social spheres. Moreover, he intimates that the intricate equilibration of different societal constitutions may also outline contours of a meta-constitution for all society, with some claim to aggregated, collective legitimacy (2018). In both respects, Teubner implies that conventional democratic theory dramatically oversimplifies patterns of constitutionalization in contemporary society. Yet, he retains a strong normative attachment to the ideals of collective self-legislation. Closer to classical theories of democracy, Brunkhorst indicates that national democracy is unsustainable if it is not supported by constitutional norms promoting democracy at the global level. On this account, national democracy presupposes patterns of political subject formation that are not envisioned in the theory of classical democracy, and democracy is unlikely to be consolidated if it is not based in reserves of solidarity that reach beyond national societies. Thornhill argues that, with few exceptions, national constitutions are incapable of creating democracy. From the moment they spelled out principles of citizenship and collective legitimacy for their political institutions, he explains, national constitutions released pressures for inclusion amongst divergent social groups, which national political systems could not, without transnational normative support, mediate into a secure basis of legitimacy (2016). He has added to this position the argument that constitutional democracy needs to be recast as a multilevel system of interaction between citizens and national political institutions and transnational norm providers (2018). On both counts, he claims that the basic subjective constructions that underlie classical constitutional theory are not able to provide a realistic or sustainable account of democracy. In each instance, the claim is expressed that constitutions contribute to democratic formation in ways not typically accounted for in classical models of democratic agency. To some degree, each perspective expresses the belief that transnational constitutional norms construct legitimacy by allowing democratic subjects to become visible that are not brought to light by conventional democratic theories, fixated on the immediate expression of popular sovereignty. Across the spectrum of this research, the claim is implied that transnational constitutional law creates a higher form of democracy than classical constitutional law, and it does so by opening democracy to subjects distinct from monolithic constructions of popular sovereignty. Theorists of transnational constitutional law implicitly see transnational law as able to resolve the antinomies in national democracy that were observed sceptically by classical sociologists, and they indicate that such antinomies were induced by the dominant national focus of early constitutions. In this respect, the theory of transnational law has deep roots in the attitudes to constitutional democracy expressed in classical sociology.

Sociology of transnational constitutions  255

CONCLUSION There are some profound variations in current research on transnational constitutions, and even some basic definitional questions remain matters of dispute. For example, theorists in this field show only limited consensus regarding the actual meaning of the word ‘constitution’. Some theorists see the constitution as attached to state institutions; others argue that many spheres of society possess a constitutional order. Similarly, these theories show limited consensus regarding the definition of the term ‘transnational law’. Some theorists see transnational law as law that migrates through the partitions between national jurisdictions; others see it as law created through the fusion of national law and international law. Overall, however, research on transnational constitutional law now forms a distinct and discursively convergent subfield of legal-sociological research. Theorists working in this field share some common methodological foundations and some overlapping perceptions. Viewed synthetically, theorists in this field generally share a classical constitutionalist outlook – that is, they presuppose that societies rely on the cohesive force of constitutional norms, such that it is not easy to imagine a geographically extensive society which cannot refer to some higher order, distinctively legitimated constitutional principles to support its basic functions. At the same time, theorists in this field share the claim that classical deliberative or voluntaristic explanations of constitutional law are insufficiently complex to comprehend the constitutional form of contemporary society. In particular, they share the view that, if constitutional law constructs the legitimational premise for society’s core functions, it is simplistic to assume that the production of such legitimacy can be traced back to the decisions of sovereign peoples and their representatives, which are solely located in national political systems. Accordingly, it becomes vital to observe how societies construct alternative sources of legitimacy and perform alternative processes of legitimation. In this respect, crucially, theorists in this field understand society itself, in a form not reducible to circumscribed social agents, as the origin of constitutional law, and society now clearly extends beyond national boundaries. Viewed synthetically, further, theorists working in this field usually observe transnational constitutional law in a methodological matrix that is abidingly attached to classical legal sociology. With obvious variations, researchers in this field galvanize theories of integration, theories of historical pluralism and atypical theories of democratic agency, all of which originate in the classical sociology of law. Deeply embedded in this field of research is the implication that processes of integration and democratization articulated in national constitutions could not be realized except on transnational premises, so that transnational law provides an essential, if paradoxical, premise for the effective performance of functions originally accorded to national constitutions.

REFERENCES Blokker, Paul. 2017. ‘Politics and the Political in Sociological Constitutionalism’. In Paul Blokker and Chris Thornhill (eds). Sociological Constitutionalism. Cambridge: Cambridge University Press, 178–208. Brunkhorst, Hauke. 2002. Solidarität. Von der Bürgerfreundschaft zur globalen Rechtsgenossenschaft. Frankfurt: Suhrkamp. Brunkhorst, Hauke. 2014. Critical Theory of Legal Revolutions – Evolutionary Perspectives. London and New York: Continuum.

256  Research handbook on the sociology of law Brunkhorst, Hauke. 2017. ‘Sociological Constitutionalism – An Evolutionary Approach’. In Paul Blokker and Chris Thornhill (eds). Sociological Constitutionalism. Cambridge: Cambridge University Press, 95–131. Durkheim, Émile. 1950. Leçons de Sociologie. Paris: PUF. Garavito, César Rodríguez and Diana Rodríguez Franco. 2010. Cortes y cambio social – Cómo la Corte Constitucional transformó el desplazamiento forzado en Colombia. Bogota: Dejusticia. Graber, Christoph. 1998. ‘Art and Money: Constitutional Rights in the Private Sphere?’. Oxford Journal of Legal Studies 18(1), 61–73. Hegel, Georg W. F. 1970 [1821]. Grundlinien der Philosophie des Rechts. In Eva Moldenhauer and Karl M. Michel (eds). Werke, in 20 vols. Frankfurt am Main: Suhrkamp, Vol. VII. Hegel, Georg W. F. 1970 [1830]. Enzyklopädie der philosophischen Wissenschaften, Part 3. In Eva Moldenhauer (ed). Werke, in 20 vols. Frankfurt am Main: Suhrkamp, Vol. X. Hirschl, Ran. 2004. Towards Juristocracy. The Origins and the Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Kjaer, Poul. 2013. Constitutionalization in the Global Realm. A Sociological Approach. Abingdon: Routledge. Klug, Heinz. 2000. Constituting Democracy. Law, Globalism and South Africa’s Political Reconstruction. Cambridge: Cambridge University Press. Krajewska, Atina. 2018. ‘Transnational Health Law Beyond the Private/Public Divide: The Case of Reproductive Rights’. Journal of Law and Society 45(1), 220–44. Ladeur, Karl-Heinz. 2002. ‘The Changing Role of the Private in Public Governance. The Erosion of Hierarchy and the Rise of a New Administrative Law of Cooperation: A Comparative Approach’. EUI Working Paper No. 2002/9. Available from: http://cadmus.eui.eu/dspace/handle/1814/187 Luhmann, Niklas. 1973. ‘Politische Verfassungen im Kontext des Gesellschaftssystems, I’. Der Staat 122, 1–22. Luhmann, Niklas. 1981. ‘Selbstlegitimation des Staates’. Archiv für Rechts- und Sozialphilosophie. Beiheft: Legitimation des modernen Staates, 65–83. Luhmann, Niklas. 1990. ‘Verfassung als evolutionäre Errungenschaft’. Rechtshistorisches Journal 9, 176–220. Madsen, Mikael Rask. 2010. La genèse de l’Europe des droits de l’homme. Enjeux juridiques et stratégies d’état (France, Grande-Bretagne et pays scandinaves). Strasbourg: Presses Universitaires de Strasbourg. Madsen, Mikael Rask. 2014. ‘Sociological Approaches to International Courts’. In Cesare P. R. Romano, Karen J. Alter and Yuval Shany (eds). Oxford Handbook of International Adjudication. Oxford: Oxford University Press, 388–412. Marx, Karl. 1956 [1843/44]. Zur Judenfrage. In Karl Marx and Friedrich Engels. Werke, in 43 vols. Berlin: Dietz, I, 347–77. McDougal, Myres S., Harold D. Lasswell and W. Michael Reisman 1968. ‘Theories About International Law: Prologue to a Configurative Jurisprudence’. Virginia Journal of International Law 8, 188–299. 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Přibáň, Jiří. 2014. ‘Polity as Constitutional Law’s Community: On the Expressive Function and Symbolism of National and Transnational Constitutions’. In Richard Nobles and David Schiff (eds). Law, Society and Community: Socio-Legal Essays in Honour of Roger Cotterrell. Farnham: Ashgate, 95–112. Scheppele, Kim Lane. 2017. ‘The Social Lives of Constitutions’. In Paul Blokker and Chris Thornhill (eds). Sociological Constitutionalism. Cambridge: Cambridge University Press, 35–66. Schmitt, Carl. 1940 [1939].‘Über die zwei großen “Dualismen” des heutigen Rechtssystems’. In Carl Schmitt. Positionen und Begriffe im Kampf mit Weimar-Genf-Versailles. Berlin: Duncker & Humblot, 261–71. Schneiderman, David. 2008. Constitutionalizing Economic Globalization. Investment Rules and Democracy’s Promise. Cambridge: Cambridge University Press. Scholz, Rupert. 1978. Pressefreiheit und Arbeitsverfassung. Verfassungsprobleme um Tendenzschutz und innere Pressefreiheit. Berlin: Duncker und Humblot. Sousa Santos, Boaventura de. 2002. Toward a New Legal Common Sense. 2nd edition. Cambridge: Cambridge University Press. Stone Sweet, Alec. 1997. The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective. Oxford: Oxford University Press. Teubner, Gunther. 1997. ‘“Global Bukowina”: Legal Pluralism in the World Society’. In Gunther Teubner (ed). Global Law without a State. Dartmouth: Ashgate, 3–30.

Sociology of transnational constitutions  257 Teubner, Gunther. 2005. ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?’ In Christian Joerges, Inger-Johanne Sand and Gunther Teubner (eds). Transnational Governance and Constitutionalism. Oxford: Hart publishing, 3–28. Teubner, Gunther. 2012. Constitutional Fragments. Societal Constitutionalism and Globalization. Oxford: Oxford University Press. Teubner, Gunther. 2017. ‘Nine Variations on a Theme by David Sciulli’. In Paul Blokker and Chris Thornhill (eds). Sociological Constitutionalism. Cambridge University Press, 313–40. Teubner, Gunther. 2018. ‘Quod Omnes Tangit: Transnational Constitutions without Democracy’. Journal of Law & Society 45(4), 5–29. Thornhill, Chris. 2011. A Sociology of Constitutions. Constitutions and State Legitimacy in HistoricalSociological Perspective. Cambridge: Cambridge University Press. Thornhill, Chris. 2016. A Sociology of Transnational Constitutions. Social Foundations of the Post-National Legal Structure. Cambridge: Cambridge University Press. Thornhill, Chris. 2018. The Sociology of Law and the Global Transformation of Democracy. Cambridge: Cambridge University Press. Vauchez, Antoine. 2014. ‘Judicialization: A Sociohistorical Perspective’. In Mikael Rask Madsen and Chris Thornhill (eds). Law and the Formation of Modern Europe: Perspectives from the Historical Sociology of Law. Cambridge: Cambridge University Press, 96–116. Vorländer, Hans. 2002. ‘Integration durch Verfassung? Die symbolische Bedeutung der Verfassung im politischen Prozeß’. In Hans Vorländer (ed). Integration durch Verfassung. Wiesbaden: Westdeutscher Verlag, 9–40. Weber, Max. 1921/22. Wirtschaft und Gesellschaft. Grundriß der verstehenden Soziologie. Tübingen: Mohr. Zumbansen, Peer. 2010. ‘Transnational Legal Pluralism’. Transnational Legal Theory 1(2), 141–89.

20.  Sociology of contract and property law Sarah E. Hamill

INTRODUCTION Writing about the 2010 Socio-Legal Studies Association (SLSA) Conference, Priel noted the dearth of private law papers (2011, 1). By private law he meant contract, torts, property and restitution (Priel 2011, n.2). A more recent SLSA conference programme suggests more appearances of contract and property than Priel counted in 2010 (SLSA 2019). While Priel’s observation was aimed more at private law theorists than socio-legal scholars, it ought to resonate insofar as it reminds us of scholarly silos. By exploring the sociology of contract and property law, this chapter seeks both to summarise the state of existing scholarship, which often treats the two separately, and argue for an explicit sociology of contract and property law. In this chapter, I draw on two approaches to legal sociology. The first is Cotterell’s definition that the sociological approach to law understands law ‘as an aspect of social relationships in general, as wholly concerned with the coexistence of individuals in social groups’ (1998, 183; 2012, 43). The second is Larsson’s argument that ‘it is of key importance to study and theorize changes in the meaning of legal language over time’ (2014, 6). The two approaches are not mutually exclusive; if anything, they are complementary because, as concepts, property and contract have a legal meaning and a social meaning. While the two meanings are related, the relationship between the legal and the social meaning is not straightforward, and the very interaction between contract and property can result in social relationships of inequality and domination. Given that both property and contract are foundational concepts in law, how they are understood can matter beyond the confines of their specific subject matter. This chapter cannot hope to be an exhaustive account of the sociology of contract and property law. For the most part it is limited to work on common law jurisdictions and work published in English. Given that most sociological work on property and contract necessarily draws on existing definitions of what each is (see, for example, Cooper 2007, 628; Beale 2016), this chapter begins, in part two, by offering a brief overview of what legal theorists have had to say about property and contract. Part three offers an overview of the methods seen in sociological work on contract and property, then moves on to set out the importance of meaning to such work and to urge more explicit attention to the interaction between contract and property, and their shifting meanings. Part four discusses some examples of the interaction between contract and property to illustrate how their interaction can result in inequality, but also flexibility, as well as revealing the inadequacy of the strict legal understandings. The fifth part concludes.

258

Sociology of contract and property law  259

CONTRACT, PROPERTY AND SOCIETY One of the theoretical stumbling blocks in the sociology of law is the extent to which law is separate from the social contexts in which it exists. Few would argue with the claim that ‘law is related to, constituted by, and constitutive of the social contexts in which it finds itself’ (Hamill 2019, 540, citations omitted) and yet the sense that ‘ ‘law” is something distinct’ if not ‘fully autonomous’ remains (Hamill 2019, 540). Recent years have seen the emergence of ‘internal accounts’ of the law (Miller 2020), particularly in the context of private law, and, while socio-legal scholars may be sceptical of such claims, these internal accounts offer a starting point for thinking about what contract and property are. When it comes to differentiating property from contract there are a few agreed points. The first is that each creates a different type of right. Contract only creates personal rights, while property creates rights that are good against the world (Dorfman 2012a, 563–4). This difference explains why courts are generally reluctant to create new forms of property given the ways in which property rights affect everyone (Dorfman 2012a, 604–7; Merrill and Smith 2000; Bevan 2018, 88–92). Despite such agreement today, it was common in the late-nineteenth to the mid-twentieth century to see arguments about new property or the disintegration of property (Vandevelde 1980; Grey 1980; see also Reich 1964), and these arguments were often linked to the rise of property in ‘valuable interest[s]’ (Vandevelde 1980, 329, 333–57). Recent decades have seen a concerted effort to stop this supposed disintegration and to reassert property as distinct (see for example, Penner 1997; Dagan 2011, 38). Yet, some contract theorists are arguing that, with the rise of the digital world, property is collapsing into contract (Radin 2006, 1233; Baird 2006, 933).1 As true as this last claim may be, the risk runs both ways; contractual rights can become property rights. Confusion between the two is longstanding and as Merrill and Smith put it, ‘it is often difficult to say where the one starts and the other leaves off’ (2001, 774). A more fruitful question might be: how do contract and property relate to each other, rather than how they are to be differentiated. Contract and property are clearly important to one another; many contracts involve the sale of property, and a key feature of private property is that it can be sold, that it is separable from the individual owner (Penner 1997, 111; Dorfman 2010, 16–18). Which is to say the definition of property depends on there being a mechanism, such as contract, for transferring property. So too does property rest on the tacit agreement of all in a manner akin to the social contract (see, for example, Austin 2013 and 2018, but see Sage 2012 and 2018). Yet there is one other difference worth mentioning: it is clear that contract creates obligations, but it is less clear what obligations property creates qua property for the owner (for discussion, see Shoked 2014; Singer 2006; Ellickson 2014). In fact, property can seem stripped of obligation (compare, Ireland 2003, 469); property rights can seem to be something a person has with little need to do anything as a result of having them. Setting out what contract and property are is only one aspect of theoretical accounts of these areas of law. Another key aspect is their justification. At the risk of oversimplification, property rights are often championed as offering individuals a way to escape the 1

  Though earlier there were concerns that contract was collapsing into tort (Gilmore 1974, 87)

260  Research handbook on the sociology of law control of others and thus be free and equal (Essert 2016, 102; Dorfman 2010, 17; Naffine 1998, 197–8; see also Cowan, Carr and Wallace 2018, 158; but, see Rose 1995). So too are contracts thought to reflect the autonomous will and freely given agreement of the parties to them (for a summary of this argument, see Saprai, 2019, 1–14). Flowing from this, there is an argument that the state ought not to interfere with contracts or property rights because they represent individual liberty (Ireland 2003, 485; Thornton 1997, 491). The politics of such arguments are clear (Priel 2011). In fact, both property and contract represent private government (Bakan 2015; Ireland 2003, 490; Sherry 2017, 169), and so both threaten inequality. Consequently, rather than being a force for a society of free and equal individuals, our conceptions of contract and property can create the very inequality and unfreedom they purport to defend against. Arguably, these attempts to legitimate specific conceptions of property and contract ought to be of interest from a sociological perspective. Indeed, the concern with legitimating property rights or contractual arrangements from state interference speaks to a conception of the social, which is worthy of further interrogation. Given constraints of space, here is not the place to undertake such an examination. However, it is worth pointing out that the nagging sense that private property is illegitimate stems from the fact that granting individuals private property rights unavoidably creates inequality (Carruthers and Ariovich 2004, 31; for attempts to legitimate it, see, for example, Sage 2012 and 2018; Schmitz 1994). Although there are those who argue that granting everyone private property rights is needed to make everyone equal (Dorfman 2012b, 1007), that claim is doubtful. Put simply, if Bert owns Blackacre the law grants him certain powers over everyone else. Even if John owns Greenacre, he will not be in the same legal position as Bert is vis-à-vis Blackacre, and vice versa. Simply making everyone an owner does not avoid the inequality inherent in owner and non-owner interactions. The inherent inequality that property creates also poses a problem for contract theory because contract theory assumes, for the most part, two equal individuals freely coming together to negotiate a contract (Naffine 1998, 195, 197). The very fact of property suggests that this is not always going to be the case. If so, this poses an additional problem for the state enforcement of private agreements, given the assumption that everyone is free and equal.

METHODS AND MEANING With the typical, more or less, accounts of contract and property as the starting point, the methods adopted by sociological studies are varied. The methodological approaches range from interviews (Bholat, Dunn and Grey 2012; Cowan, Carr and Wallace 2018), to case studies, both contemporary and historical (Cooper 2007; Fizpatrick and Barnes 2010; Fitzpatrick and McWilliam 2013; Şerban 2014), to approaches which draw on the scholars’ own experiences (Wheeler 2016, 43, 53–7), to those which draw on legal history (Ireland 1999; McGovern 1976), to those which are more theoretical (Keenan 2010; Thompson 2018). Most sociological work offers a mixed approach in that it draws on the ‘mainstream’ forms of legal scholarship, such as analysis of cases and statutes, while also relying on empirical work, sociological theory, archival materials, or other ‘less traditional’, in a legal sense, methods and sources. In effect, the methodological approach can be summarised as an attempt to bridge the legal world with the social world.

Sociology of contract and property law  261 What differs is the underlying motivation behind sociological work. At times, it is an attempt to elucidate legal change (McGovern 1976); sometimes it is with the goal of making the law ‘better’, which typically means making it more reflective of what is actually happening (Thompson 2018); other work is an attempt to rethink what particular legal concepts can do (Keenan 2010, 424), or to raise questions about whether the law is keeping up with social change (see, for example Wheeler 2016). In terms of normative ambition, sociological work in property and contract is sometimes aimed at policy makers or judges (Thompson 2018), at other times it is aimed at accepted theories about the interaction between continuity and change (Valverde 2012, 25), and at other times it can be aimed at the ‘mainstream’ legal scholars in an attempt to nudge them into improving their theories about what property and contract are and how they work (see for example, Mulcahy 2016). Thus, sociological work on contract and property law is, perhaps, more divided by purpose than by methodology. On the one hand there are those scholars who seek to understand, while on the other there are those who, through understanding, seek to effect change or, at the very least, offer a critique. Either way, there is a further unifying aspect of sociological work on these areas of law; the close attention to meaning and effect, and the ways in which they do and do not change and, perhaps, the ways in which they should change. Davina Cooper’s study of Summerhill School’s2 property practices, for example, examines how property works in an ‘alternative community’, and argues that this allows for ‘new and different questions’ for ‘conventional property’ (2007, 661). Her conclusions point towards the way property shapes relationships within communities (2007, 661) and she cautions against assuming that communities are homogeneous (2007, 659). Crucially, she notes that individual and community needs are intertwined at Summerhill (2007, 659), which runs counter to the dominant narrative in much property and, indeed, private law theory, which tends to see these needs as antagonistic or, at least, separable. Sociological studies of contract and property law often seek to challenge neoliberal theories which ‘obscure patterns of power that almost always exist between the parties by assuming that individuals would only agree to terms that were personally beneficial for them’ (Thompson 2018, 618). Thompson’s study centres on disputes involving the family home, particularly those involving married couples who had entered into some kind of ‘nuptial agreement’ which was agreed before, or during, the marriage, or as part of a separation agreement (2018, 620). She argues for a ‘feminist relational contract theory’ [‘FRCT’] (2018) which would seek ‘to examine the constellation of relationships surrounding decision-making processes’ (2018, 626). What is striking about Thompson’s study is that the disputes she examines involve both property and contract. In effect, Thompson is attempting to find a way to bridge the individualism inherent in much doctrinal contract law with the relationships in which individuals find themselves. Both Cooper and Thompson are attempting to find ways to stretch the concepts of property and contract in order to make them fairer. Both take dominant understandings as their starting point, property for Cooper and contract for Thompson, yet Cooper uses field work to interrogate the dominant meaning while Thompson relies on a new theoretical approach to query dominant assumptions. What is interesting about these sociological

2

  Summerhill School is a school which follows the ethos of democratic education.

262  Research handbook on the sociology of law attempts to widen meaning is that examining how the meaning of property and contract has shifted, or could shift, illustrates that meaning is fluid and flexible. Such flexibility and fluidity has long existed in a doctrinal sense, but it can lead to exploitation rather than liberation. The border between property and contract is porous and their interaction can significantly alter social relationships. In the next section, I set out some examples of the interaction between property and contract, to illustrate how changes in meaning and effect suggest that a sociology of contract and property is needed, rather than a sociology of contract and a sociology of property.

INTERACTIONS AND THE FLEXIBILITY OF MEANING Tempting though it may be to analyse those who insist on a strict differentiation between areas of law, such as property and contract, or private law and public law, such efforts are beyond the scope of this chapter. What is useful to note is that conceptual slippage is endemic in the law; whether it is the idea of ‘contractarian citizenship’ (Crawford 2003; Larkin 2014), or arguments that welfare payments are property (Reich 1964). Such conceptual borrowing has many causes, but it allows us to trace changes in meaning and effect, and the resulting shifts in social relationships. As always, we must be mindful of Valverde’s insight that continuity and change are not mutually exclusive (2012, 25) and, sometimes, one can look like the other, and vice versa. The interaction between contract and property law can result in hybrid forms because particular interests are simultaneously contractual and proprietary and, through these hybrid forms, can produce liminality. To illustrate this point, I rely on examples involving both land and intangible property. The modern, common law of property recognises at least two interests in land which began as merely contractual rights or interests. These interests are leaseholds and freehold covenants. In 1290, Quia Emptores sought to end subinfeudation whereby a person created yet another layer in the feudal pyramid with yet another layer of rights and duties instead of transferring their interest (George and Layard 2019; Simpson 1986, 15, 22–3). At that time, leaseholds3 were seen as commercial rather than proprietary and so survived (George and Layard 2019, 31, 42, 324). Following 1290, leaseholds gradually came to be understood as estates in land in their own right; that is, they became property. McGovern argues that leaseholds’ move from contract to property resulted from practical concerns, namely how to protect the leaseholder’s interest in the land when they were ejected by a third party (1976, 501). Historically only the landlord (the lessor)4 could sue the third party (McGovern 1976, 520), and McGovern suggests that the change in the law was linked to the increasing frequency and length of such leases (1976, 519). If all the leaseholder had was the ability to sue the landlord, he would lose out where the landlord could not pay damages (1976, 528). The leaseholder never got a freehold in a strict legal sense, but got virtually the same rights as one; in fact, he ultimately got better remedies than the freeholder (1976, 525–6). Thus, the proprietarisation of the leasehold resulted

3

  Leaseholds are a form of landholding in many common law countries; the term encompasses short-term rentals, as well as long leases of several decades. See George and Layard 323–75. 4   Here I use landlord as it is the more readily understood term.

Sociology of contract and property law  263 from an attempt to protect the rights of the leaseholder. The tool used was property, but the goal could have been achieved by other means. Freehold covenants are a more recent innovation, traced to Tulk v Moxhay where, famously, Moxhay was found to be bound by his predecessor’s covenant to keep London’s Leicester Square as a garden (Tulk v Moxhay 1848). The decision is thought to rest on some version of the doctrine of notice, because Moxhay knew of the restriction and so, in fairness, should have been bound by it. However, ‘that reasoning puts the cart before the horse, ‘Notice’ in property law relates to notice of interests in land, not contracts’ (Sherry 2017, 60). English courts retreated from Tulk so that only negative covenants could bind successors and tried to tie them more convincingly to land to limit the potential damage (Sherry 2017, 60; see also, George and Layard 2019, 473), but the end result was still a new interest in land. The problem with the interest Tulk and its successors created is that it allows the will of a predecessor in title to ‘sterilize the use of a parcel of land’ (Simpson 1986, 257), with limited scope for subsequent owners to change it. Freehold covenants make contractual rights binding beyond the original parties. Leasehold’s shift towards property and the emergence of freehold covenants can be understood as accidental. The courts were clearly trying to solve particular problems and relied on existing concepts to do so. By relying on property when the issue was contractual, the courts benefitted the leaseholder but, following Tulk, allowed third parties to be bound by a covenant they had never agreed to. The rights at stake may have seemed comparable to property, but this was a deception made real by law.5 Crucially, however, neither leaseholds nor freehold covenants have abandoned their contractual aspects and thus they are both proprietary and contractual, but also somewhere in between property and contract. Leasehold has proven to be a remarkably useful and adaptable form of landed property (see, for example, Cowan, Carr and Wallace 2018, 73–97). Its mix of contract and property solves some problems for the common law (for these see, Murphy, Roberts and Flessas 2004, 158–9), but it also allows for leasehold communities to place limits on what their members may do. Other common law jurisdictions have generally shifted towards strata title or condominium (‘strata’) and away from leasehold (see Harris 2011; Sherry 2017, 9–36) but, like leaseholds, strata can allow for more fine-grained control of its members beyond what is needed for the continued functioning of the strata community. Strikingly, both strata and leaseholds have expanded beyond apartment-style housing into detached and townhouse developments (Sherry 2017, 22–6; for the US, see McKenzie 1994; for England, see Department for Communities and Local Government 2017). While leaseholds and strata can work to solve particular problems, their simultaneous hybrid and in-between nature can result in relationships of exploitation and inequality. Two examples will suffice in illustrating this point. The first is England’s Ground Rent Scandal (GRS) and the second is Sherry’s study of strata in Australia (2017). The GRS saw hundreds of people buy detached, semi-detached and other styles of housing as leasehold without fully grasping the difference between leasehold and freehold. As leaseholds are still contractual, they often contain clauses about the payment of ‘ground rent’ which is a sum the leaseholder must pay the freeholder. Ground rent is often small and payment

5

  Compare Larsson’s point about digital things (2014, 10–11).

264  Research handbook on the sociology of law is often not requested. However, the GRS saw leaseholds with clauses where the ground rent doubled every set number of years. Thus, while the ground rent started low, in some cases it is scheduled to increase exponentially and, along with the other limits imposed in the lease, renders the leasehold impossible to sell. Understandably, the underlying freeholds are seen as a secure investment given the rates of return and the freeholders are reluctant to sell to the leaseholders (Law Commission 2018, 4, n.11, 6–7; Department for Communities and Local Government 2017). The issue here is that leaseholds allowed the freehold to become valuable as a source of income rather than just being a title to land. As much as leasehold is a tool for shaping communities, it is also a tool for making the freeholder money. Understandably, reform of this area of law has been proposed (Law Commission 2018). Sherry’s study of strata title illustrates the variety of rules which such communities can create. The original rationale behind strata allows each titleholder to be liable for general maintenance of the common areas of the building or development. However, it can also be used to impose certain rules on what the individuals within the strata community can do: no businesses, no pets, no Airbnb, no children playing unsupervised, no laundry racks on balconies, no basketball hoops, no loud noises between set hours and so on (see, Sherry 2017, 165–7). Depending on the jurisdiction, the list can be extensive.6 According to mainstream contract theory there is, perhaps, little cause for concern in the rules of strata communities. People should be allowed to form communities where they are free to set the rules of how they wish to interact (see Dagan and Heller 2000). A person need not buy if they do not like the rules, or they may campaign to change them if they do buy. With respect to the first point, buying into a strata community might be the best choice some people can make with the other constraints they face, such as place of work, available funds and location of children’s schools (see Sherry 2017, 48–9; see also Boyack 2014, 770). As to the latter, strata communities generally operate on the basis of one title, one vote (Sherry 2017, 48). The problem here is that one person can have more than one title. Strata only looks like it operates democratically. In reality, it allows for plural voting. As a result, the rules are not easily changed and can discriminate (Sherry 2017, 171–6).7 Both the leaseholders affected by the GRS and those who own in strata communities have property rights, but it is clear that their ‘ownership’ does not fit with what they expected ownership to mean (compare and see also Cowan, Carr and Wallace 2018, 158–78). The reason why is due to the contractual relationship their particular form of property relies on. In the GRS, it is the contractual relationship which traps the leaseholder with property they cannot sell, and places them in an unequal relationship with their freeholder. This poses twin challenges for property and contract theory; for the former, the interaction between contract and property puts paid to the argument that granting everyone property would address the inequality that property creates (for this claim see, Dorfman 2012b, 1007); for the latter, the interaction means that two, formally

6   Human rights legislation might act as a limit on some rules, such as adults only buildings in some jurisdictions (see also, Sherry 2017, 173–8). 7   The potential for racial discrimination is illustrated by the US example (McKenzie 1994, 68–74).

Sociology of contract and property law  265 equal autonomous individuals are rendered unequal, apparently by their own free choice. The property of the leasehold becomes more akin to a mere contract because it cannot be readily assigned.8 So too for strata owners is it the contractual agreement they have entered into which limits their ability to act as they wish in their own property. Ownership can actually result in a severe lack of choice, as the rules of strata communities and the GRS make clear. In effect, leaseholders and strata owners are caught between property and contract. They cannot access the promises of ownership, but nor can they readily negotiate the terms of their contractual arrangement. The in-between status of leaseholders is clearly captured by Cowan, Carr and Wallace’s study of shared ownership in the UK (2018). Shared ownership is a part-own and part-rent arrangement, designed to make ownership more affordable. Shared-ownership apartments often exist in developments alongside social housing, and those in shared ownership find themselves unable to access services offered to social tenants while also being unable to act as owners (Cowan, Carr and Wallace 2018). Both leaseholds and strata draw on the myths surrounding property to sell themselves, but their contractual aspects undermine the very myth they seek to rely on. As much as their hybrid status can allow for apartment blocks to function; the liminality they produce means that those who have a leasehold or strata title are vulnerable in unanticipated ways (see also, Harris 2016). As much as legal liminality has focused on immigration status (see for example Chácon 2015), there is scope for it to be applied more broadly, particularly if we take seriously the claim that property is about belonging (Keenan 2010), and also linked to citizenship (Green 1998). The potential for interests to shift between contract and property has also been seen beyond land law. Corporate law and, in particular, shares offer a good example of mixing contract and property while also never quite being fully one or the other. Historically, the development of corporate law was driven by the need to avoid prohibitions on usury (Ireland 1999, 35–6), and was thus rooted in contract and partnership law (1999, 37–45). As shareholding became more widespread and social developments necessitated a move away from a partnership model toward the joint stock company, shares came to be ‘property in the form of a claim on the company’s profits’ (1999, 47; 2003, 462–5). So too had shares been ‘cleansed of obligation’ and so became property when once they had been a creature of contract (2003, 469). This occurred as the purpose of shares changed from being a way to raise capital to being a right to an income (Ireland 2010, 841). The contractual theory of corporations was then reinstated in the twentieth century, and for many years the dominant view of corporations was that they were ‘complex sets of contracts’ (Armour and Whincop 2007, 429). Recently there has been a revival of the argument that corporate law is rooted in property law (Armour and Whincop 2007). Corporate law’s oscillation between contract and property is illustrative in two ways. First, it shows that legitimating shareholders has proven to be a moving target. As potent as the concept of property is, simply calling shares property is not enough. Hence the turn to contract because contractual theory attempts to ‘portray corporate shareholders as people who actually give something to corporations, rather than as people who, for the most part, are simply placing bets on their future profitability’ (Ireland 2003, 472).

8

  Alienation generally being considered crucial to what property is (Hamill 2015, 682–90).

266  Research handbook on the sociology of law Second, the continued interaction between property and contract means that, while coownership is essential in the way corporations work, corporate law ‘allow[s] co-owners to have contract-like flexibility over the terms of their sharing arrangements, whilst nevertheless giving proprietary effect to such arrangements’ (Armour and Whincop 2007, 463). The need to legitimise shareholders speaks to the way that property and contract rest on popular support in ways that are not always obvious. Granted shareholders are vulnerable, but state interventions to assist them often focus on protecting the property of shareholders rather than the company itself (Ireland 1999; but see Bholat, Dunn and Grey 2012). Such protections miss that the company might be more socially valuable than the shareholders’ property (Ireland 1999, 52–7). So too does it miss that shares are poorly understood even by their holders (Bholat, Dunn and Grey 2012). Arguably this stems from a focus on shares as property instead of recognising that they are a mix of property and contract. The interaction of contract and property does not always result in hybrid forms or liminal statuses. It can also reveal the inadequacy of the concepts of contract and property for particular areas such as intellectual property (IP). Since the eighteenth century the traditional approach to protecting creative works has been that of the individual genius (Craig 2011, 12–14; Larsson 2014, 11). Whether this was ever an accurate depiction of cultural creation is open to doubt (Craig 2011, 2; compare Boateng 2013), but the rise of digital media is putting it under more pressure than before. Craig argues that copyright should approach the author as ‘a participant in a process of cultural dialogue and exchange’ (2011, 5, 41). She calls for ‘a collaborative model of shared and cumulative cultural dialogue’ rather than ‘a proprietary model of cultural production’ (2011, 3). While this model has yet to be enshrined in law, recent studies suggest that the model is actually operating despite being legally questionable. One example is Kretzschmar and Stanfill’s study of video game modifications (2019). They note that ‘[v]ideo game modding – the practice of nonprofessionals altering or adding to games – is by some measures presumptively illegal’ (2019, 518). In tinkering with the IP of the game, modders are violating their end user license agreement (2019, 518). Yet the video game industry does not always take action against these modders, many of whom just do it for their own entertainment as well as ‘status and recognition’ within the gamer community (Kretzschmar and Stanfill 2019, 518, 527). The video game industry often releases the source code for games to encourage and facilitate modding (Kretzschmar and Stanfill 2019, 523), without necessarily making changes to the license agreement. The law has not changed but the practices of the users and the copyright owners have and both grasp that collaboration is mutually beneficial. Beyond video games, there are instances of those who started as copyright violators ultimately collaborating; for example, via designing a fashion collection with the very company whose property was initially used without permission (Alder and Fromer 2019, 1470–78). Echoing modders’ concern with ‘status and recognition’, Adler and Fromer examine the rise of shaming in the context of IP disputes, with shaming working both to criticise those who copy without attribution and those who are too hasty with their cease and desist letters (2019, 1478–83, 1512). Indeed, shaming can actually result in a different outcome than litigation (2019, 1503–26). The disputes here are not about who owns cultural symbols, but who can use them and for what purposes. So too does this raise questions about whose agreement is needed before IP can be used. Ownership of IP is

Sociology of contract and property law  267 no longer as clear cut as the traditional rules and approaches assert. Once again, Craig’s model of ‘shared and cumulative cultural dialogue’ (2011, 3) seems to better capture the practice, but not the law. Accordingly, social change is putting pressure on the concept of property that IP relies on.

WIDENING, CHANGING, AND THE FUTURE OF CONCEPTS Both the sociology of contract and the sociology of property are established in their own right but, as I hope this chapter has illustrated, an explicit sociology of contract and property is needed as well. Often contractual ideas are implicit in the sociology of property, even if they are in the trite but vital comment that property rests on social agreement. So too is property often implicit in sociological accounts of contract as many contracts involve property in some form or another. To go back to Cooper (2007) and Thompson (2018), one study was focused on property and the other on contract but, yet, each study illustrated how the other concept mattered. Re-reading Cooper, it becomes clear that agreement and trust – which sociologists of contract law emphasise as being crucial to contract (Wheeler 2017, S83–S84) – was central to the way in which property was different at Summerhill, and to how the alternative community of Summerhill worked (2007). Whereas for Thompson the nuptial agreements were about property and also, tacitly, whether a person is entitled to property, even where they have seemingly agreed to renounce their claim (2018). Closer attention to the interaction between the contractual and proprietary aspects in sociological work could shed critical light on how meanings change and are, sometimes, exploited (see Ireland 2003). Thus far the sociology of contract and property law remain relatively siloed. This applies even when the work involves the examination of areas which are a mix of contract and property, such as leaseholds and strata. Both Sherry’s (2017) and Cowan, Carr, and Wallace’s (2018) studies are rooted more in the sociology of property law than contract. This is not meant to be a criticism but, rather, a question for future research. How would drawing on the sociology of contract have changed each of these studies? What new insights would emerge? An explicit sociology of contract and property law would likely require and result in new theoretical tools which could be utilised by scholars in other areas. As suggested in this chapter, attention to hybrid forms of property and contract is sorely needed to better understand the effects of such interaction on society, and the ways in which their interaction can change the meanings of contract and property. Meanwhile, studies of developments in IP law illustrate how social shifts place pressure on certain concepts. In IP law, the focus is on how the internet and social media are undermining IP’s borrowing of a conception of property rooted in land and individual ownership. Yet attention to contract and how it is, or is not, involved in these changes and why it is, or is not, involved might lead to important insights. Particularly in a world where most people enter into, or are already in, multiple contracts each day, and have often agreed to these contracts without fully reading the terms (see Radin 2006). Sociological studies of contract law have already pointed out that doctrinal contract law rests on a commercial rather than domestic model (Thornton 1997, 489), and the ways in which ‘formal contract law was not as conclusive of contractual relationships as lawyers thought it was’ (Wheeler 2017, S80). This leads to the question of what is conclusive of contractual

268  Research handbook on the sociology of law relationships? Alder and Fromer’s (2019) and Kretzschmar and Stanfill’s (2019) studies suggest that social capital matters a great deal more than formal rules, which ought to raise the question of whether doctrinal ‘contract law’ really is an offshoot of commercial law? If it is the case that ‘[t]he purpose of contract law is not to enforce private morality or promises per se, but to help forge a sense of community and collective endeavour, which is essential for the justification of any state or legal system’ (Saprai 2019, 7), should the sociology of contract not be central to contract law? All of which is to say that despite the dominance and omnipresence of contract and property law and the relationships they create, whether they mean the same thing all the time is far from clear, particularly when they interact, as they often do. An explicit sociology of contract and property law could offer deeper insights into these questions and into the social relationships that result from these interactions and shifts in meaning.

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21. Property as socio-legal institution, practice, object, idea Antonia Layard

One of the earliest expressions we learn as infants is ‘it’s mine’. Squawking like the seagulls in Finding Nemo, ‘mine, mine, mine’, we assert control and authority over objects and spaces. Yet, as the film illustrates, such statements are often declaratory rather than assertive; possession is not always sufficient. Once developed, property rules can be culturally distinctive and jurisdictionally variable even though, at their core, like multiply overlapping Venn diagrams, property systems contain shared ideas, especially as a material, living practice concerned with land. Recognising that formal written rules only go so far, empirical socio-legal studies collect information about how people talk of and use property, aiming to understand what the concept means in daily lives, how it operates and affects others. Researchers emphasise that property rules and concepts are not neutral or natural, but rest on specific ontologies of law and belief. They ask whether property is best understood as a binary between inclusion/exclusion, a set of abstracted relationships between persons or a system of governance. Today, most academics would agree that property exhibits all of these aspects, although no single scheme can capture property in all places, at all times. To consider how these multiple and fragmented understandings of property fit together, this overview considers four aspects; property as an institution; property as practice; property as a socio-legal object; and property as an idea. It explains that institutions matter because, without some form of governance system, property cannot be protected, managed or enforced. Property is a form of spatial governance, though one that is often revered as a private right rather than as a collective arrangement. Property practices, meanwhile, are critical to understanding how property operates ‘on the street’, particularly when times are good. Property as socio-legal object considers both the thing being owned (the land, river, or idea) as well as the thing representing the owning (a parchment deed or PDF). Property as idea discusses how important the imaginary of property continues to be, particularly as a private right, even in a time of widely acknowledged inequality, globalisation and climate change.

INSTITUTION Socio-legal property scholars are alive to the power of a state’s interpretation of property. Given the power exercised in the name of doctrinal legal rules demonstrated in elite places (courts and police stations), and on elite materials (parchment, paper or electronic files rather than oral narratives), property scholars reject the notion that property is just doctrinal law or just practices. Rather, with an eye to power, identity and dominance, scholars focus on how institutions of government and the institution of property interact. 271

272  Research handbook on the sociology of law Property has long been intertwined with governance systems and suffrage. In England in 1647, between the civil wars, the soldier Thomas Rainsborough critiqued Lord Henry Ireton’s assertion that only landowners should have the vote, objecting that ‘the poorest he that is in England hath a life to live as the greatest he’, challenging the link between land ownership and decision-making (Levy 1983). For many centuries, English women were inhibited from owning property (McDonagh 2017), while in settler colonies racist framings of identity were critical in determining who could be a landowner in Canada and Australia, as well as in Israel and Palestine (Bhandar 2018). It was 1928 before voting was disconnected from land ownership in England, illustrating just how long property ownership, recognition of identity and grant of democratic engagement were interlinked in long-established institutional moves. Even today, some jurisdictions facilitate citizenship following a property purchase. Recognising property’s institutional inevitability, the drafters of the American Statement of Progressive Property begin by recognising that ‘property operates as both an idea and an institution’ and that property confers power (G. S. Alexander et al. 2008). Long ago, this point was also made by Adam Smith in his 1776 Wealth of Nations, where the early economist emphasised the connection between property and the state and its favouring of the wealthy: ‘Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all’ (Smith 2007, V.i.b. 12). Without government or governance, property is hard to recognise or enforce. Conversely, decision makers are incentivised to make property-protecting decisions, both because decision makers are often ‘landed’ (Cahill 2002; Shrubsole 2019) and because property owners are often more likely to turn out to vote. While it is important to be cautious when generalising across jurisdictions and experiences, it is remarkable to note how common these patterns of land ownership and governance are (Hall and Yoder 2018). Yet despite the clear link between property and power, property acquisition is rarely questioned. William Blackstone, the eighteenth century English jurist who famously characterised property as ‘sole and despotic dominium’ acknowledged in the next line that ‘there are very few that will give themselves the trouble to consider the original and foundation of this right’ (Blackstone 1830). Gerrard Winstanley, the seventeenth century English Digger, bluntly proclaimed that: ‘Those that Buy and Sell Land, and are landlords, have got it either by Oppression, or Murther, or Theft’ (cited in Hill 2006, 85). Still, today, there is a polite silence around the fact that, as Guy Shrubsole notes in his 2019 Who Owns England: ‘[h]alf of England is owned by less than 1% of its population’ (Shrubsole 2019). Modern legal systems conventionally find it easier to determine how to govern property once allocated than to allocate property fairly. Although shelter is a basic human need, the right to a home under Article 8 of the 1949 European Convention of Human Rights focuses far more on protecting people from having their home taken away than ensuring that people have one in the first place (Hohmann 2013). The same is true of agricultural land, also often critical to survival. Writing of land reform in Ethiopia, Ayano (2018) describes land as ‘the main source—often the sole source—of income for rural dwellers and an expression of civic life’. He writes that ‘to have rights over land [in rural societies] is to be human: “To be landless is to be sub-human”, (citing Dunning 1970, 271; see also Fanon 2002).

Property as socio-legal institution, practice, object, idea   273 In South Africa, the consequences of land theft still characterise life. At the end of apartheid 87 per cent of the land was owned by whites, who constituted less than 10 per cent of the population. Bernadette Atuahene (2011, 987) explains how racially motivated property loss is still largely uncompensated in a country where ‘[t]he tears of these families have wet the pages of history and made them heavy with despair’. Compensation payments remain unmade due to logistical difficulties, differing conceptions and, of course, political choices, even though empirical investigation indicates that payments