Queen Mary University of London, School of Law Legal Studies Research Paper No.

68/2010

Golden Ages: Notes on the Future of Sociology of Law, with Some Comments on its Past, on Poland, and on Jazz

Roger Cotterrell

Electronic copy available at: http://ssrn.com/abstract=1715564

Published in Societas/Communitas: Journal of the Institute of Applied Social Sciences, University of Warsaw, volume 12, 2011, no. 2, pp. 9-23

GOLDEN AGES: NOTES ON THE FUTURE OF SOCIOLOGY OF LAW, WITH SOME COMMENTS ON ITS PAST, ON POLAND, AND ON JAZZ

Roger Cotterrell

ABSTRACT

The paper takes advantage of the Polish context for which it was prepared to begin with an analogy between Polish jazz, in what is often called its golden age of the 1960s and 1970s, and European sociology of law in the same period. These two very different enterprises were often officially seen as suspect but also potentially useful, and both were highly creative adaptations of inherited resources. European sociology of law could appear helpful to the state and at the same time a preserve of very non-conformist scholars. Yet its nonconformism was built on well established sociological methods and theories. This combination of secure intellectual foundations and political/ professional tensions may have been a recipe for special innovation and creativity. However, some of the intellectual security on which sociology of law was built is now being undermined, especially through new approaches to theory. Also, the political/ professional tensions and insecurities that helped make sociology of law intellectually unconventional are disappearing. The paper argues that sociology of law should re-establish its subversive potential in particular ways, and should firmly defend its special sociological vision without being confined by sociologys disciplinary boundaries. Keywords: Sociology of law; social theory; economic analysis; law and state.

1. WHY EUROPEAN SOCIOLOGY OF LAW MAY BE LIKE POLISH JAZZ

The opportunity to celebrate many outstanding achievements of Polish sociology of law over the past quarter century is very welcome.1 Given the historical focus,

Queen Mary University of London, UK.

1
Electronic copy available at: http://ssrn.com/abstract=1715564

perhaps I shall be forgiven if I begin with some (not entirely irrelevant) reminiscences. I first visited Poland in 1978, and what brought me to Warsaw was music not law or sociology. At that time, as a sideline, I wrote record reviews and articles for a magazine called Jazz Forum, published internationally from Warsaw in Polish, English and (for a time) German editions. I was paid a journalists rate in Polish currency and eventually there were enough accumulated zotys to cover the return air fare from Britain. On that first visit I met no academics but many musicians, and experienced something of the underground Warsaw arts world of the time. In 1985, I visited Warsaw again, and split my time between reviewing the Warsaw Jazz Jamboree for Jazz Forum (my accumulated earnings once again covered the trip), and making contact with academics especially sociologists of law based at the Jagiellonian University in Krakow.2 Polish culture, as I encountered it, seemed a mix of exciting non-conformism despite severe political pressures, warm friendships, and fresh ideas in the arts and the social sciences. The affection I felt then for Polish culture has endured.

I knew something about Polish sociology of law before my first visit to Warsaw. Hugh Babbs English translation of some of Leon Petrayckis work made little longterm impact on socio-legal scholars outside Poland.3 But writings by Adam Podgrecki on public opinion about law and his book Law and Society were published in English in the early 1970s (Podgrecki et al 1973; Podgrecki 1974), feeding into a growing interest in Britain in sociological research on law. At almost exactly the same time, in a London record shop I found a large batch of second-hand Polish jazz records, perhaps offloaded there by a visitor to the city. I bought some of them on impulse without having heard any of the music. But those recordings4 from the 1960s
1

This paper was delivered in May 2010 as part of the 25 th anniversary celebrations of the founding of the Chair of the Sociology and Anthropology of Custom and Law at the University of Warsaw. 2 When it was clear that I would be visiting Poland in October 1985 I wrote to several universities around the country to try to make contact. It was Professor Maria Borucka-Arctowas friendly invitation letter that made me decide to make the train journey from Warsaw to Krakow to visit her institute. She knew of me, having read my general text on sociology of law which had recently been published in London. 3 Petraycki 1955. See e.g. Weisbrod 2009. A full length account of Petrayckis ideas specifically aimed at an Anglophone socio-legal readership and relating his work to socio-legal theory rather than to legal philosophy (the focus of which is now surely far removed from his concerns) remains very necessary. Petraycki himself hoped that the empirical focus of his work based on observation of real phenomena would be emphasised in English exposition of his ideas: see Babb 1938: 574. 4 Especially, Krzysztof Komeda Quintet, Astigmatic, Polskie Nagrania XL0298 (1965), Zbigniew Namyslowski Quartet, Polskie Nagrania XL0305 (1966), Wodzimierz Nahorny Trio, Heart, Polskie

2
Electronic copy available at: http://ssrn.com/abstract=1715564

and 1970s are still among my prized possessions inspired, very distinctive contributions to musical art. On them, the originally American language of jazz is remarkably transformed to become, in part, the artistic expression of a very different culture and collective experience. What is the relevance of all this? Critics sometimes talk about a golden age of Polish jazz, and also of Polish film. Could we speak equally of a golden age of sociology of law (not just in Poland but in Europe more widely), locating all these phenomena roughly in the third quarter of the twentieth century? The analogy between art and social science can be carried a little way. The musical distinctiveness and fierce creativity that I heard on record may have had something to do with the fact that Polish jazz was often seen officially as oppositional and suspect potentially subversive but tolerated by the authorities as useful for certain purposes. So there was an opportunity to be creative, in an environment of unorthodoxy.

Strangely, I think sociology of law when it developed institutionally in Europe in the mid-twentieth century had some related characteristics. It was certainly potentially useful to state authorities; it could be seen as aiding and supplementing legal systems that were becoming subject to strain as welfare state ideas and ambitious legislative programmes developed and where the democratic bases of law were seen as insecure. But sociology of law was also frequently viewed with suspicion, especially by lawyers and law faculties, in many countries. Its practitioners like jazz musicians were often seen as somewhat suspect within the established order. Legal sociologists seemed difficult to categorise neatly in terms of established disciplinary categories; they tended to be intellectual non-conformists; often people who had distanced themselves from colleagues in their parent disciplines or even from the very idea of clear disciplinary divisions. Yet sociology of law could attract governmental support: it could convey important information to the state about the effects of legal strategies, it could reveal sources of tension in legal systems, and sometimes substitute for inadequate communication between state and citizen. It could be a searchlight trained on the populations the state sought to regulate.5
Nagrania XL0452 (1967), Tomasz Stako Quintet, Music for K, Polskie Nagrania SXL0607 (1970). For general background see Szprot 2004. 5 For thoughtful commentary see e.g. Stjernquist 1990.

Perhaps one last extension of my musical analogy can be risked. The musical language of modern jazz was firmly established by the 1960s and 1970s, so that it was easy for a listener knowing that language to recognise when and how a distinctive colouring was being added to the music; there were clear reference points against which originality, innovation and creativity could be judged. If there was a golden age of Polish jazz it was one in which something strikingly fresh and new was made from established materials transforming their inherent constraints into previously unseen opportunities. Correspondingly, in the third quarter of the twentieth century the canons of social science were relatively secure; there were clear reference points against which to judge intellectual innovation, and sociology of law could draw on established sociological traditions. At the same time, by adapting these traditions to entirely new fields of research on legal phenomena, legal sociologists could build something fresh, innovative and distinctive they could develop whole new fields of study founded on familiar sociological methods and theories. And in this process of building, sociology of law could aspire to modify the legacy of the parent traditions on which it relied.

The question this paper asks is whether those special conditions of existence of sociology of law have ceased to operate. I mean the combination of: (i) secure, well understood social scientific foundations on which to build, and (ii) creative (political, cultural) tensions that may have helped inspire distinctive outlooks and impact. The first of these linked conditions will be called here simply foundations and the second simply tensions. In the space available only a few ideas can be offered about what has happened to each of them in recent decades.

2. FOUNDATIONS

Modern sociology of law started as potentially well-integrated into the larger projects of sociology as an intellectual tradition. But it did not begin as a sub-discipline of professionalised academic sociology (which, in fact, it predated). Early in the twentieth century, the jurists Petraycki and Eugen Ehrlich made up their own

sociology for their own juristic purposes.6 Among the classic social theorists, both mile Durkheim and Max Weber saw law as too important to be treated merely as a limited, special field to which sociology could be applied. For Durkheim the study of law could clarify sociologys basic moral concerns; for Weber sociology of law linking the study of authority, rationality, bureaucracy and state power was at the centre of his sociology (Schluchter 2002). And later, Georges Gurvitch created a sociology deeply influenced by juristic interests (Swedberg 1982). It seems fair to say that, in terms of theory, sociology of law developed alongside and in parallel with (but not dependent on) sociology viewed in a larger, more general sense.

By the 1960s and 1970s when modern empirical sociology of law was becoming institutionalised in European universities, sociology provided for it not so much a controlling parent discipline as a broad and eclectic intellectual tradition and a compendium of methods and theories on which legal sociologists could draw. Even today, professionalised academic sociology as a distinct university discipline does not monopolise these supports of sociology of law, though it contributes powerfully to them. Americans concerned with theorising the social tend to relate their work to sociological theory the theory of professionalised sociology as a discipline, but in Europe we are more likely to refer to social theory implying, by that, that theory seeking to explain the social can be contributed to from many disciplines or can be based on work that defies disciplinary classification. That open approach, it seems to me, is healthy. It refuses to limit the resources of theory that sociology of law can draw on.

Must Social Theory be Sociological?

But social theory is now so disparate that it is extremely hard to say what its scope and defining character are. An authoritative recent text, Profiles in Contemporary Social Theory (Elliott and Turner eds. 2001), has chapters on 34 theorists, beginning with Martin Heidegger and covering a range of other philosophers, as well as literary
6

For sketches of Petrayckis sociology see Paecki 1984 and Lande 1975. See also Motyka 2006. There still seems to be very little detailed information as to where Ehrlichs main sociological concepts originated. The matter has not received much discussion.

and psychoanalytic theorists. Theodor Adorno who, in his later work sometimes regards empirical social research as inherently questionable (ibid: 65) is included. So is Walter Benjamin who like several of the other figures profiled in this book would not have thought of himself as a social theorist as such (ibid: 70). Jacques Derrida, clearly a philosopher rather than a social theorist (ibid: 152) has a chapter, as does Jacques Lacan, though the latter failed to develop an account of the relevance of his theories to social life in any detailed fashion (ibid: 145).

The point is certainly not that theorists such as these should be excluded in considering law in society theoretically. Nor is it that social theory has to be the work of scholars who explicitly identify themselves as sociologists. It is merely that if social theory is to retain an identity it must still be clearly sociological in a broad sense, even if not authored by professional sociologists. Being sociological entails three things: (i) focusing centrally on exploring the nature of the social the bonds that link people in collective life, (ii) being empirically oriented that is, observing and being strongly sensitive to social diversity and local and historical variety in social conditions, and (iii) being systematic theoretically rigorous in seeking explanations of that diversity and variety (Cotterrell 2006: 54-8). If social theory is to be able to aid sociology of law it must surely be sociologically-oriented in these ways. But philosophy generally is not so oriented. It does not focus on what Philip Selznick usefully calls variation in the social (Cotterrell and Selznick 2004: 296). It usually seeks universal knowledge that transcends or ignores such variation. But social variation is always the centre of sociological concern. As it relates to law, it is central to sociology of law.

Much theory in sociology of law is strongly sociological in the broad transdisciplinary sense advocated above. But this kind of theory seems now to be unfashionable among critical legal scholars who are much more likely to turn to recent continental European radical philosophers for inspiration. The question of the constitution of the human subject, which is said to be transforming social theory (Elliott and Turner eds. 2001: 2) and informs much contemporary critical legal theory, may reflect a more general deepening concern with the ambivalence of individualism (cf. Elliott and Lemert 2006), which goes along with suspicion of a

distinct realm of the social as such.7 The consequence is a gulf between the kind of theory that can structure sociology of law and other kinds of theory that attract much attention today but, because of their lack of interest in (or even hostility to) sociological perspectives, are hard to relate to legal sociologys empirical research agendas.

Marginalising the Social; Marginalising Sociology

Beyond this, even among those theorists who see themselves as sociologists, there is sometimes an undermining of sociological possibilities from the inside, so to speak, so that it sometimes becomes unclear what meaning is to be given to the social as an object of sociological inquiry. For the French social scientist Bruno Latour, there is nothing specific to social order no social dimension of any sort, no social context, no distinct domain of reality to which the label social or society could be attributed. (Latour 2005: 4) Specific associations and practices (e.g. of lawyers) should be studied; the inner logic of such practices, properly understood, may explain much about associations and networks (ibid: 7). Case files, even the ordering of officials pigeon-holes, and the organisation of offices become centres of attention (Latour 2010). The social, which has an ever-shrinking meaning (Latour 2005: 6), may be just the aggregate of effects of the workings of such things.

Surely Durkheim, for whom the social was solid and real in its effects, has been turned on his head, for the social is no longer to be seen as a source of effects on action.8 It seems that, for Latour, we should observe professional practices, such as legal practices, as wide-eyed ethnographers and marvel at the way the social emerges locally and distinctively from them. Thus, Latours (2010) ethnography of law, like Alan Watsons sociology-free comparative legal studies (see e.g. Cotterrell 2006: 109-16), emphasises the esoteric practices of legal elites making their own history, as if there were no outside social forces that is, no aspects of the social beyond the realm of immediate practice that may have powerfully shaped those practices and
7 8

See e.g. Bauman 2002: ch 1 and, for a survey of some legal ramifications, Simon 1999. One writer interestingly poses the challenge as being to speak of a phenomenon such as religion (or, we might add, law) as an eminently social thing as Durkheim did but without having to bear the suffocating weight of the social (Day 2009: 733; emphasis in original).

continue to do so. A consequence of this approach seems to be to devalue most general concepts used by sociologists to refer to relatively large scale structures of social life. This is on the basis that general conceptions of the social cannot explain the localised detail of peoples interactions with each other and with things they encounter in their environment. But to offer only the briefest sketch of a criticism of Latours emphasis, it may be asked why, firstly, it must be assumed that some relatively large-scale conceptions of the social do not form part of the backdrop against which actors play out their localised interactions. Is it really as clear as Latour seems to suggest, that the lawyers of the French Conseil dtat, recently studied by him (2010), do not form their everyday conceptions of law and its relation to politics and administration within very general, often implicit, imaginings of the social? These imaginings might include, for example, ideas about the state as a social association and the place of the Conseil Dtat within this, about the nature of society-regulated-by-law, about the functions of law in society, about social conflict and social solidarity, and about the general social conditions of political, economic and administrative order. Concepts of the social surely enter practice and the formation of associations and networks in many ways. At least, there is no reason to suppose their absence. Secondly, whatever these legal actors consciousness of the social in various large senses, how can their practices in fact be isolated from the political, cultural and economic currents within which an institution such as the Conseil dtat exists? While the social exists in local practices and networks, it exists at the same time also in structures and forces that shape those practices and networks and help to establish and measure their significance. It makes no sense to undervalue either micro or macro conceptions of the social. One can be suspicious and critical of the reach of general sociological concepts without discarding or belittling them. It would not be appropriate to single out Latours approach for criticism here if it were not symptomatic of what seems to be a much more widespread downgrading of sociological ambitions and of the whole idea of the social as something of which law, for example, can be considered an aspect or field. Economic analysts of law have sometimes sought to colonise legal sociologys terrain entirely, some of their claims 8

weakened by a remarkable tendentiousness.9 And rational action theory, developed in social theory by some scholars, is a direct adaptation of the rational choice theory that has flourished in economics (see e.g. Goldthorpe 1996; Goldthorpe 1998). So it seems that theory in sociology of law has been under attack on at least two fronts. One of these is the undermining, in sociology itself and by some of its external critics and competitors, of sociological inquirys specific focus on the social (and law within this) as a realm which it has special competence to analyse. The other is the resurgence of philosophy in new, radical forms, as a privileged source of theory for critical legal inquiry and one that usually excludes the empirical sensitivity to social variation that is vital to sociology of law.

Strategies of Defence

What is to be done if this diagnosis is correct? One requisite is to assert more strongly (and teach more confidently) the great heritage in sociology of law of sociologicallyoriented social theory what can be called simply socio-legal theory. The canon of socio-legal theory is likely to survive long after current fashions in radical philosophy have passed. But this will happen only if the canon is given vitality through continuous discussion and renovation, and where appropriate through application in empirical research. The validity of established theory needs to be tested in changed conditions. Just as the heritage of legal philosophy is continually re-examined and kept vital through that re-examination, the socio-legal theory of the past should be reconsidered both in relation to the times and places in which it was originally formulated, and in relation to the circumstances of the present. By this means, the study of classic theory can be a measure of changing socio-legal conditions and perceptions.

Another requisite is to ask of all new theory how it can provide specific guidance for the study of law in relation to social variation; to ask how it can explain legal change
9

See notably Posner 1995, claiming that Max Weber, the principal founder of sociology, was a functionalist with a useless methodology and that American sociology of law has no theory in the scientific sense. It might do worse than borrow theory from economists such as Gary Becker who work on topics in sociology and from sociologists who place rational choice at the centre of their sociological theories (Posner 1995: 266, 268, 278).

as part of social change, and legal diversity in relation to diverse social conditions in different times and places. As Durkheim emphasised long ago, sociology is needed to do what philosophy cannot or will not that is, to examine empirically the diverse and changing forms of the social and to address social issues with solutions tailored to specific social settings, rather than to aim to declare universal or abstract truths. That does not imply any hostility to philosophy but merely makes the claim that, without sociology, philosophy is unlikely to make much headway in understanding changing social life, and laws social character. Social theory must illuminate the social conditions of particular times and places. It is not enough to write, as philosophers often tend to do, about the situation of the individual or the social in some seemingly timeless or contextually indeterminate way.

A third necessity is to go on the attack against (rather than accommodate) forms of economic theory that purport to usurp entirely sociologically-oriented theorys focus on the social. Despite claims that economic theory is flexible enough to analyse all social life, much of it privileges a certain kind of rational action and models all other social action by reference to this. It is not that economists necessarily see social life as dominated by instrumentally rational action but that this kind of action is often assumed to provide an appropriate template for understanding the social. Yet sociology has usually firmly resisted this assumption (see e.g. Smelser 1998), and for good reasons. Weber treated instrumentally rational action as only one of four basic types of social action, and two of those types (traditional and affective) he saw as nonrational. Also, like many later sociologists, he viewed other types of action as more socially pervasive than instrumentally rational action (Brubaker 1984: ch 2).

Legal sociologists today should continue to assert the significance of emotion, tradition, and personal adherence to ultimate values or beliefs as powerful shaping forces on action, so that instrumental rationality, rather than dominating and overcoming these forces, is actually often given its essential points of reference by them. Another way of putting this is to say that the attempt to reduce culture (with all its affective, traditional and belief-based components) to instrumentally rational action is often unhelpful (Cotterrell 2006: ch 6). Recent financial crises may offer good illustrations of the results of this inadequate economic treatment of culture. Economically-motivated actions seemingly amounting to rational choices within 10

certain (banking or financial) environments can appear highly irrational in a different perspective, in relation to different environments. But rather than talking in terms of a dichotomy between the rational and the irrational, it might be better to see all actions as shaped by complex cultural environments which give them much of their meaning. It is for sociology of law to study these cultural environments without which the significance of economists models of action in actual social life cannot be reliably assessed.

Sociology of law, seen in this way, is a more fundamental study than economic analysis of law because it has the potential to examine (and perhaps inform critique of) the cultural conditions that influence what rational action or rational choices may be taken to be for particular actors in particular environments that is, it can examine rational choice and rational action by reference to social variation. Without this kind of examination, economists models of rationality are likely to be unhelpful in predicting or explaining human behaviour.

3. TENSIONS

If foundations provide intellectual security; tensions provide intellectual disturbance. The two go together. Where methodological or theoretical foundations seem secure, cultural or political tensions may provide a powerful irritant or itch that can inspire creativity, non-conformity and the urge to produce something distinctive. Secure foundations may prevent tensions from becoming destructive and merely crushing intellectual productivity. Instead of just giving up, one looks for new approaches to accommodate the irritant, to cope with the itch. Is this the recipe for the creative breakthroughs of a cultural or intellectual golden age? Possibly, but perhaps it can be said that for sociology of law today the itch and the irritants have largely gone.

Routinised Sociology of Law?

Sociology of law is no longer generally under threat as something suspect or subversive. It is no longer forcefully excluded from law faculties through organised 11

campaigning; no longer condemned as intellectually odd and untried, and a risky new field in which to invest resources. It may, instead, be regarded as a relatively standardised area of intellectual endeavour, at least as regards empirical socio-legal research. Undoubtedly the situation varies greatly between different countries. In the English-speaking legal world socio-legal studies are largely accepted in the best law schools as part of the great smrgsbord of current legal studies they are just one more component in the increasingly indigestible interdisciplinary educational mix that legal education has become. In some continental European countries sociology of law remains largely excluded from law faculties.

But, one way or another, perhaps the battles are over in many countries: sociology of law has been accepted either as part of the law school world or as largely absent from it. Matters seem settled. Things are unlikely to change quickly. Rather than passionate battles for intellectual territory, there is likely to be little general interest in questions about the current institutional status and credibility of sociology of law. New contenders have displaced legal sociology as the objects of law school turf wars.

For the governments and grant-giving bodies, which in some countries actively championed sociology of law for its potential usefulness, optimism has often been replaced with a more measured acceptance of socio-legal research as a routine support of government through law one that sometimes produces relevant knowledge and sometimes does not. In Britain, Hazel Genns large-scale study of citizens justiciable problems and how they are dealt with, Paths to Justice: What People Do and Think about Going to law (1999), attracted much governmental and media attention and was published with a foreword by Dame Brenda Hale, now (as Baroness Hale) one of Britains most senior judges. In the UK, as in other countries, the patent usefulness to government of good empirical research such as this, revealing the reality of citizens experience of law, could hardly be denied. But it is difficult to judge the effects of much research, which is surely mainly driven by researchers interests and judgments of importance, and by funding organisations changing strategies and priorities.

As a legal theorist I am a consumer not a producer of empirical socio-legal research, but I wonder whether some of the cultural or political tensions that provided the itch 12

or irritant to inspire this kind of research in the past have disappeared. Genns excellent, undeniably valuable study to take an outstanding example is in no way oppositional, subversive or suspect but is a work of friendly, respectful critique of the existing legal order exemplifying the harnessing of mainstream social science in aid of better citizens access to justice.10 Probably no-one was made violently angry by its publication, although in earlier times socio-legal research could certainly produce such a reaction.11

Clearly empirical socio-legal research is very varied; much of it is significantly distanced from established legal system practices and official governmental or juristic thinking. It is pursued with many different aims and motivations. But perhaps it would be good if sociology of law, in the countries where it is well-established institutionally and accepted as part of the world of law-government, could somehow reinforce more of what was once seen as its subversive, oppositional potential; its suspect nature; its uneasy non-conformity and inability to fit neat categories of juristic or social scientific knowledge. In those conditions we might expect to be truly surprised by its innovations and radical rethinking of the nature of law in society.

Being Subversive Again?

If this diagnosis is right what is to be done? The best prospects of renewal probably lie in currently occurring changes in the nature of law itself and in legal sociologists willingness to explore them. The growth of transnational law beyond nation state boundaries is part of this scenario (Cotterrell 2009). So are new aspirations for legal diversity and complexity within nation states especially associated with cultural and

10 11

See the largely descriptive review in Lewis 2000. It is interesting to recall the incandescently hostile reactions of parts of the United Kingdom legal profession in the late 1970s to John Baldwins and Michael McConvilles (1977) research on plea bargaining in British courts. Their book was published at a time when empirical socio-legal research on the court system was still a new and controversial enterprise in the UK. Perhaps unsurprisingly, opposition came primarily from legal professionals who saw aspects of their carefully nurtured public image as defenders of justice being potentially undermined by researchers revelations about the apparent extent of negotiated justice in the courts. For criticism of negative reactions to the research at the time, see Partington 1979.

13

religious pluralism (see e.g. Grillo et al eds. 2009). Sociology of law needs theory to organise new understandings of law that treat it not just as a general directive instrument of nation state governments but as a range of often competing regulatory systems national, intra-national, transnational and international and the indeterminate, fluctuating relations between them.

Clearly, not all future work in sociology of law will, or should, focus on forms of law that are ceasing to be coterminous with the reach of particular nation state jurisdictions, or that take the form of special legal aspirations demanding differential recognition in particular parts of national political societies. Most research in sociology of law, it may be assumed, will continue to focus on the law of the nation state as it operates in the national political society as a whole, and it will continue to measure laws operations against the idea of a rule of law operating universally throughout that society but limited within its boundaries. Nevertheless, as socio-legal researchers increasingly recognise, transnational regulation and intra-national legal aspirations raise cutting edge issues for socio-legal theory issues that, in the main, juristic theory and legal philosophy have failed to emphasise as fundamentally significant in considering the changing nature of law in general (cf. Melissaris 2009).

In some respects national governments may have an interest in underemphasising the ongoing transfer of regulatory power to agencies or networks of community that are often beyond their direct control. Correspondingly the juristic world may have an interest in underemphasising the extent to which legal regimes and legal authority are becoming fragmented and losing the sense of normative unity which juristic thought has traditionally emphasised and valued (Cotterrell 2003: 8-11). In so far as sociology of law focuses specifically on such changes it recovers some of its subversive potential its ability to reshape or challenge legal thinking in radical ways.

Partly because challenges arising from the changing nature of law and regulation beyond and within the nation state are already attracting much excellent work it seems justifiable to be optimistic about sociology of laws future as constructively radical scholarship. To underpin this, it should cherish and secure its foundations foundations that are sociological in a broad trans-disciplinary sense. And, however obviously useful sociology of law manages to be to those who fund it, it should aim to 14

keep a subversive edge, a creatively oppositional stance, a distancing from both the juristic world and the dominant concerns of particular social science disciplines. That is the key to its vitality, and especially to its continuing ability to set its own agenda.

At the same time, sociology of law should relate closely to and draw freely from juristic understandings and from the sociological tradition understood in the broad trans-disciplinary sense indicated in this paper. In this way it has the potential to stake out a centrally important place in social research in the twenty-first century. There is surely no golden age of sociology of law that has irretrievably passed. The current age of research can be as golden as socio-legal scholars have the will and imagination to make it.

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