Law and Inequality

Liberal legal philosophers hold that western legal systems are neutral, impartial
between the parties, i.e. indifferent to economic, political and social inequalities.
But sociologists have shown that economic and social inequalities produce legal
inequalities. This is because the dominant classes and social groups have
interests in perpetuating their dominance through wealth, status and power.
They have myriad resource advantage for influencing legislation. Many legal
systems purposely enact economic and social stratification systems into law. For
instance, historical restriction on voting based on property and gender, prior to
the onset of adult suffrage in Western Europe and US; also the racial and
property laws in South Africa. Even in India, the legislature governing the undertrials is an anti-poor legislation because it restricts the rights of the undertrials
only so long as they are not released on bail. This consequently favours the
wealthy who can afford to bail themselves out of crimes.
Even legal systems that are egalitarian on books, often operate in unequal ways
in practice. Galantars essay Why the Haves Come Out Ahead (1974) points to
some key reasons why inequality reduction through litigation is limited. Galantar
distinguishes between one shot players and repeat players. The former have only
occasional recourse to courts whereas the latter are engaged in similar litigation
overtime. Accused criminals and couples seeking divorce fall within the first
category whereas big corporate houses, companies, etc. are repeat players. Both
these categories have different objectives in going to the court. Whereas the
former are concerned with the outcome of their particular case, the latter pick
and choose cases strategically, allocating more resources where the balance tilts
in their favour.
Additional resources for repeat players include prior familiarity with the particular
legal actors and processes adjudging their cases. Thus before a given litigation
begins, the repeat player knows a great deal about the relevant legal
precedents, increasing their capacity to pursue cases for favourable verdicts.
This ensures inequality between the two categories of litigators.
Since lawyers are repeat players, access to them gives a party an advantage. Big
corporations have their own in-house lawyers trained and experienced in
litigation. One-shot players have limited access to specialised lawyers as such
lawyers pick the Haves, i.e. the wealthy, high-status clients. Lawyers working
on contingency basis may help improve this situation. This culture in America
involves lawyers receiving as payment, a portion of the monetary compensation
awarded to plaintiffs in civil cases on the condition that plaintiffs win the case.
So, if the lawyer only expects a strong case on part of the plaintiffs, they may
have access to lawyers easily.
Early studies of affirmative action programs suggested that inequality reduction
was greatest when companies monitored and rewarded managers for affirmative
action performance just as they did for performance on other business goals
such as profitability.

Aggressive and effective implementation of legislative law designed to benefit

the disadvantaged is more likely to happen when there is sustained social
movement pressure from below. Movement pressure enhances the likelihood that
enforcement agencies and courts will fine such legislations on an effect-based
rather than intent-based interpretation.
Equal employment laws provide ways for individual plaintiffs to overcome
financial and expertise disadvantages by pooling resources for litigation. For e.g.
federal government can represent victims collectively, as in a class action,
involving the consolidation of many similar individual claims into a single lawsuit
played for large stakes in terms of monetary awards and legal precedent.
Burstein found a statistically higher chance of winning a discrimination suit when
government is a party in the case. He also found class actions associated with
plaintiff victory.

Law as a Concept- Pospisil

The definitions and nature of law can be categorized into 6 parts:
1. Cultural evolutionism- The oldest and most traditional category includes
theories which claim that law emerges as an achievement of cultural
evolution only in complex societies and specifically in stratified and
civilized societies. Tribal communities are supposed not to have enjoyed
the benefits of law. Conformity and social control in such societies is
achieved primarily through the power of custom that is known to
everyone, needs no restatement elucidation or enforcement by a group
leader.
2. Cultural ethno-centricism- To this category belong scholars who have
refused to dissolve law into an all-embracing omnipotent custom. They
define law by a rigorous criteria derived from western legal tradition that
make the concept more universal but inapplicable in many primitive
societies. Radcliffe Brown defined law as, social control through a
systematic application of force by a politically organised society.
According to James Davis, law is the formal means of social control that
involves the use of rules that are interpreted and are enforceable by the
courts of political community. This approach was rigid and narrow and
hence inapplicable to many societies! (ethno-centricism- English laws are
the standards set to judge Indian laws)
3. Cultural relativism-This category seeks to study law from the frame of
thought of people whose legal structure they are studying. This rejects the
western-biased legal categories. They insist upon particularistic folk
conceptualisation of law, characterising their position as cultural solipsism
(i.e. a philosophy that only ones own position is real and can be verified).
Their approach lacks meaningful cross-cultural applicability as it rejects
analytical theories and concepts. Zake claims that there is no substitute
for using the terminology of a non-literate society. Zakes claim has been
criticised for recognising law as a phenomena rather than a concept. He

focuses on accepting everyones folk system as an end in itself precluding

the development of any useful theory of anthropological (study of
past/present of humankind- building of knowledge with experience)
jurisprudence (study and theory of law). Law is a concept that has a
category of individual social phenomena. Phenomena do exist in the world
but categories do not, i.e. their construction changes with time, space and
purpose.
4. This category relates to the use of single criterion for delimitation of the
meaning of law. Barkun defines law as, system of manipulable symbols
that function as a representation, a model, a social structure. According
to Radcliffe Brown, law is physical sanction administered by a politically
organised society. Both these definition are too broad to have any
significance. In the former definition, the manipulable symbols may
include kinship behaviour, kinship terminology, residential patterns etc.
Whereas in the latter definition, physical sanction may be applied even
outside the field of law.
5. The last category relates to defining law using multiple attributes or
criteria. All sociologists belonging to this category believe that no one
criterion can sweepingly define law, rather a pattern of several attributes
exist in social phenomena to define law. The earliest attempt in this
category was to define Roman customary law with two attributes, namely,
longa consuetude (long use) and opinio necessitates (opinion of
indispensability). Karl Llewellyn and E. Adamson Hoebel identifies four
elements essential to the existence of law:

a. Enforceability of an imperative- compels individuals to behave in a

certain manner
b. Supremacy- in conflict with other values, the legal prevails
c. System- law belongs to an organised body of social phenomena
d. Officialdom- provides the legal system with official publicity
6. Cant define

Herbert Spencer and Laissez Faire

For Herbert Spencer, evolution was the key to understanding human progress
and legal and social development, similar to natural selection in biology. This was
regarded as scientific in the highest sense. In the economic context, Adam Smith
had argued that only harm could come from government interference in
economic affairs and that the highest prosperity would be achieved by leaving
the economy to work by itself. The belief behind this was that there exists a
natural order to the working of the universe and anything in conformity with the
same is bound to succeed. Spencer believed that just like biological evolution,
social evolution would arise as part of an automatic and independent process. He
desired to impress upon society that very small part of conscious direction could
hope to achieve in altering the process of social evolution. His opposition to
social engineering was grounded in the concept of society.

Modern sociology has completely rejected social Darwinism. It is only in Hobbes

that we see the picture of a sovereign whose primary task is not to protect
property or promote a good life but to forcibly produce harmony of interest which
operates without disrupting the society. Bentham despite his enthusiasm for law
reform was a supporter of laissez faire. He propagated the idea that once the
legal system was overhauled there would be little need for further legislative
interference. He failed to envisage the basic economic and social conflicts that
require continuous vigilance by the legislator. He was engaged in the
reconciliation of interests for the greatest possible amount of happiness.

Jhering
Jhering placed great emphasis on the functioning of law as an instrument for
serving the needs of human society. Serving the needs involves solving the
inevitable conflict between societal and individual interests. For this purpose the
state employs the method of reward and also the method of coercion. The
success of the legal process is measured in terms of the balancing act between
these interests.

Max Weber
Weber was the first to develop a systematic sociology of law. His primary concern
was to understand the development and characteristics of western society, the
most distinctive feature of which is capitalism. The existence of a rational legal
order is critical for capitalism. Weber saw law as passing through stages ranging
from charismatic legal revelation through what he called law prophets to a
systematic elaboration of law and professionalised administration of justice by
persons who have received legal training.
Legal irrationality is where the decision-maker is guided by reaction to individual
cases. Such legal systems lack restraints of procedure and the sort of
consistency that we associate with a system of judicial precedent. The legal
systems attained formal legal rationality only when these rules were expressed
by use of abstract concepts. Such legal systems, Weber claims, were unique to
modern western civilisation. Formal rationality must be considered a leading
characteristic of modern legal systems.
Webers sees this rationalisation as accidental rationalisation of law and
attributes it to the bourgeoisie interests and the interests of the absolutist state.
He rejects any suggestion of a specific economic causation. Weber sees the
development of bureaucracy as central to the establishment of a rational legal
administration. English with vested interest in retaining the archaic formalistic
features were seen as a major impediment to rationalisation.

Another factor Weber considered was natural law. Its role was to legitimize legal
change necessary for rationalisation of law. He saw the absence of natural law as
the impediment to spreading of rationalisation in both Chinese and Judaic law.
Webers also establishes a relationship between law and capitalism. According to
him, economic situations only provide opportunity for the spread of legal
technique if it is invented. Law is seen as crucially related to economic forces.
Weber showed how modern capitalist enterprises rest primarily on calculable and
predictable rational behaviour of the legal and administrative system.
Weber gives certain reasons for the conjoint growth of formal legal rationality
and capitalism:
1. Stable rules providing legal rights and guarantees to parties to exchange,
operate to increase predictability and certainty in contracting.
Guaranteeing enforcement of contracts will ensure that promises are kept.
This encourages general business activity and market exchange. This
increase in market exchange would further boost contracts and business.
Although market exchange could be increased without the guaranteed
enforcement of contracts, emergence of a full blown capitalist economy
would be unlikely
2. Formal legal rationalization promoted rational capitalism by making
available new tools especially the legal ideas of agency, negotiability, and
legal person. Weber considered these ideas essential for the development
of economic action and institutions with a high degree of calculability,
predictability, and systematization.
The concept of legal person makes expectation, liability and responsibility
the core of contracts instead of magic, prophecy and privilege. This
facilitates exchange relations.
3. Idea of legal personhood makes business organisations bearers of
universal rights and duties entitled to formal equal treatment under law.
Weber considers the confluence of many factors, such as prior economic and
legal preconditions and diverse political and religious factors, leading to a full
blown capitalism.
England is seen as an exception to Webers theory. He saw the methods of proof,
the jury system, the system of law magistracy, adversarial system as irrational.
Weber pointed to a shift from empirical justice to a rational system based upon
rules and principles. He states that England has gained capitalist supremacy not
due to the judicial system but in spite of it. He turns the contradiction to his
theory to his advantage due to his multi-variant analysis.

Marx
Marx viewed law predominantly as a dependent variable rather than an
independent variable in social change. Marxs historical materialist philosophy of
history relegated law to superstructure- an expression of changing economic

modes of production. These modes changed due to class conflict, from slave
societies, to feudalism, to capitalism, to socialism and communism. Each mode
likewise entails its own characteristic class structure and conflicts between
owners and non-owners. Hence, according to Marx, law preliminary references
economic categories of property, class, labour as it codifies pre-existing
production relations in economy and society. In general tenets of historical
materialism, law is a state that represents the changing class relations. Marxs
analysis of the 19th century Factorys Act, presents law as being an object and
outcome of class struggle rather than simply reinforcing bourgeoisie dominance.
The restriction over the work days length resulted from persistent working class
mobilization.
For a proposed law of prohibiting gathering of wood from Rhenish forest, Marx
saw it unjustly vague that no distinction is drawn between gathering falling wood
and felling trees. Marx fought this legislation and hoped that his critique would
make a difference and expose these legal shenanigans.

BOHANNAN- differing realms of law

Legal Language
Stone assigned 7 attributes to the phenomena called law. Law is:
1.
2.
3.
4.
5.
6.
7.

Complex whole
Includes norms regulating human behaviour
That are social norms
The complex whole is orderly
Order is characteristically a coercive order
Institutionalized
Degree of effectiveness sufficient to maintain itself

Pospisil examines several attributes of law: attribute of authority, that of

intention of universal application, that of obligation, and that of sanction.
Hermann Kantorowicz states that it is upto the general jurisprudence to provide
a background to make these different concepts of law sensible. Law is a devise
governing external conduct and the same should be in a form that court, etc. can
deal with. Every rule contains an ought that has a moralizing effect and that
which differs for each society. Law is a devise by means of which men reconcile
their actual activities and behaviour to their sensibilities and a way that allows
an ordered social life to continue.

Double Institutionalization

Law must be distinguished from norms and customs. A norm is a rule which
expresses ought aspects of relationships between human beings. Custom is a
body of such norms including regular deviations and compromises with norms
that is actually followed in practice. The difference between custom and law is
that where the former is inherent in the institutions it governs or those which
govern it; law is seen in a narrower and recognisable context i.e. in the context of
legal institutions only. Just as custom includes norms, but is both greater and
more precise than norms, law includes custom in the same way. Kantorowicz
calls law justiciable i.e. he means that the rule must be capable of
reinterpretation and must be reinterpreted so that the conflicts within the nonlegal institutions can be adjusted by an external authority.
Legal institutions are those by means of which the people of the society settle
disputes that arise between one another and counteract any gross and flagrant
abuses of rules. Legal institutions have two unique aspects. They have some
regularized way to interfere in the malfunctioning of a non-legal institution.
Secondly, they have two kinds of rules, one that govern the legal institution itself
and another that modify the rules of non-legal institutions.
Customs are norms about the ways in which people must behave if social
institutions are to perform their tasks. Those customs that are re institutionalized
to another level, they are restated for the more precise purposes of legal
institutions, are laws. This way the most characteristic attributes of legal
institutions are laws about the legal institutions themselves, although most are
about other institutions of society.
According to Malinowski, law is body of binding obligations regarded as right by
one party and acknowledged as the duty by the other, kept in force by the
specific mechanism of reciprocity and publicity inherent in the structure of
society. Malinowski erred when he said that law is kept in force with reciprocity.
Reciprocity is the basis of custom, not law. Law is rather the obligations that are
re institutionalized within the legal institution so that the society may function in
an orderly manner on the basis of the rules so maintained. Therefore law is
based on double institutionalization.
Whether in the realm of kinship, contract, citizenship, property rights, the
relationship between people can be reduced to a series of prescriptions with the
obligations and their correlative rights. Legal rights are only those rights that
attach to norms that have been doubly institutionalized. They have their material
origins in customs of non-legal institutions but must be clearly restated for
enabling the legal institutions to perform their tasks.
Law is never a mere reflection of custom, and is always out of phase with
society, specifically because of the duality of the statement and the restatement
of rights. The more highly developed the legal institution, the more out of phase
it is due to constant reorientation of the primary institutions. It is the mere
nature of law, its capacity to do something about the primary social institutions
that creates the lack of phase. Even if one could assume perfect legal
institutionalization, change within the primary institutions would soon jar the

system out of phase again. People must attempt to reduce the lack of phase.
Custom must grow to fit the law or it must actively reject it. Law must either to
grow to fit the custom or it must ignore and suppress it. For instance, how
marital rape was declared a crime by the House of Lords in 1991 but hasnt been
accepted as a custom in society.
Social catastrophe and social indignation are sources of law and much resultant
change in custom. These technical and moral changes, new situations appear
that must be legalized. This varies for developed and developing countries. In
the developed nations, where the institutionalizing of behaviour is already
concentrated in political groups etc. the non-legal social institutions take time to
catch up with law. Whereas in developing countries, there is little demand made
of legal institutions and therefore little contact exists between them and the
primary institutions.

The boundaries of legal sociology- BLACK

I
Contemporary SOL is characterised by confusion of science and policy. Its
analysis is in scientific language of systems, structure, pattern,
organisation, etc. but sometimes comes to include normative considerations of
ought and just. Legal sociologists criticize one another according to usual
scientific standards of methodological precision and theoretical validity, but
sometimes they become more political than scientific when assessing. One
sociologist characterised another as being bourgeoisie, liberal and pluralist
etc.
A purely sociological approach to law should involve not an assessment of legal
policy, but a scientific analysis of legal life as a system of behaviour. This would
lead to a general theory of law that would predict and explain every instance of
legal behaviour. Efforts to achieve this must be central to SOL. Value
considerations are irrelevant to SOL.

II
Legal effectiveness is a major concern of SOL. It is a comparison between legal
reality and legal ideal and the gap between law-in-action and law-in-theory.
Sociologist seeks to lessen this gap. Impact studies use a statute whose
purpose is clearly discernible, as a measuring rod, and study its impact.
Implementation studies- The impact may be difficult to measure if the judicial
decision or statue used is ambiguous. Difficult to understand to what extent
certain ideal is followed. In such a case, or in the absence of either measuring
rods, the investigator assesses his empirical materials against standards of
justice such as rule of law, due process, etc. Comparative studies involves
the use and comparison of status quo with the ideals aforementioned.

Legal effectively study may be valuable to people who are in a position to reform
the legal order. This gives them leverage. The mere existence of this gap
although does not in itself overwhelm all resistance to change, or cause the
bridging of the gap.
In case of absence of ideals, the investigator may implant his own legal ideals
and at this point advocacy begins and social science ceases. The value of this
research becomes precarious the moment it involves a value judgement instead
of a scientific analysis.

III
Technocratic approach is propagated by Black. This approach resembles a
broader style of thought called scientism. This suggests that every problem can
be solved if only the appropriate expertise is applied to it, i.e. every problem can
be solved scientifically and empirically. Technocrats are concerned with efficiency
and effectiveness. They seek to attain some unstated goals and therefore certain
approaches are called liberal and bourgeoisie whereas others radical and critical.
Technocrats do not moralize.
Technocratic style dominates the discussion of social controversy, for e.g.
whether or not marijuana should be legalised, other studies on riots, violence
and pornography. In the name of science and progress these studies lead to the
discussion of issues that were earlier simply condemned. This style has helped
sociology gain a position of prominence in times of rapid social change and
conflict. A typical sociologist knows nothing of moral and social philosophy, but if
public policy is nothing but a matter of scientific technique, why should he? In
the technocratic era, moral philosophy is an oddity.

IV
Law consists of observable acts and not rules and norms employed in both the
literature of jurisprudence and in everyday legal language. Law like anything else
is amenable to scientific method as any other aspect of reality. A social science
of law true to positivism cannot escape limitations.
Within the positivist philosophy, three basic principles of scientific knowledge can
be noted.
1. Science can know only phenomena and never essences- essence of
knowledge is a matter of jurisprudence and not science
2. Every scientific idea requires a concrete empirical referent of some kindscience can only order experience and has no way of gaining access to
non-empirical domains of knowledge
3. Value judgements cannot be discovered in the empirical world and for that
reason they are without cognitive meaning in science.

To know the effectiveness of law, standards of value need to be imported, that

are foreign to science. Science knows nothing about it. The literature on
evaluation of effectiveness of law is shown as scientific findings!!
Criticism of contemporary legal sociology- premised on the notion that sociology
is a scientific enterprise and can be distinguished from moral philosophy,
jurisprudence or any other normatively oriented study. Study of fact must be
distinguished from study of values. One intrusion of values in scientific enquiry is
the selection of the problem of study. Weber contended that the role of values in
the choice of a problem is unavoidable. Though many methods have been
devised to minimize the effects of these biases, good social science still requires
a disciplined disengagement on part of the investigator. This way it may be said
that every social science is inherently biased as the sociologist sees the problem
from either the top or the bottom of the pyramid of social life. Major arguments
against the possibility of a pure science of man, seem to have some merit.
Moreover scientific statements influenced by values do not make them value
statements. The values have no logical impact upon the validity of the scientific
proposition. Its validity is determined only by empirical verification.

V
Generality of SOL- Legal sociology should be the development of a general
theory of law, such that it seeks order wherever it is found. It seeks to discover
the principles and mechanisms that predict empirical patterns of law, whether
these patterns occur in this day or the past regardless of the substantive area of
law involved and regardless of the society. There is no serious SOL unless there is
generality.
A general theory of law is addressed to the relation between law and other
aspects of social life, including other forms of social control, social stratification,
division of labour, social integration, structure and substance of social networks.
Works of Malinowski, Hoebel, Gluckman, Bohannan etc have contributed
immensely to the general theory of law. Contemporary sociologists tend to limit
their attention to the American legal system and disproportionate emphasis is
given to the criminal justice system. One must study and address problems at a
higher level of generality thereby contributing to and benefiting from
scholarship. For instance, investigation of a policeman should treat him as an
instance of law and not as a person in himself. From a pure sociological point of
view it is unimportant to know that the policemen are human or to know how
their mind works. A pure sociology concerns law as a system of behaviour. Taken
in this sense, law feels nothing, no joy no sorrow. Study of the police contributes
to legal sociology only when it provides insight into legal behaviour, its empirical
profile, the social conditions under which it occurs, and its social implications. It
should tell us about the legal matter they handle, the principles they process the
cases upon, how police behaviour resembles other patterns of legal behaviour
etc. We thereby add systematically to the existing knowledge of this pattern.

END TERM
For Jurisprudential Sociology Philippe Nonet
Pure Sociology
Donald Black, describes himself as an uncompromising adherent of the
positivist approach. He reaffirms the doctrine that value judgements cannot be
discovered in the empirical world. Value considerations are as irrelevant to SOL
as to any other scientific theory. Black seeks to define limits within which social
inquiry must be confined or lose its purity. A purely sociological approach
should involve not an assessment of legal policy, but rather an analysis of legal
life as a system of behaviour. The intrusion of value judgements or personal legal
ideals of the investigator escapes the scope of sociology and enters
jurisprudence. The sociologists should return to this basic mission of a general
theory of law- a theory that seeks to predict the empirical patterns of law. Black
says he reasons from basic positivist principles. This orthodoxy of social
scientific enterprise has a deep distrust for evaluative elements of social
scientific discourse at its centre. This distrust is compounded by the scope of
ambiguity. Canons of general theory, clearly defined concepts, objectively
identifiable behaviour, against normative judgements, biased and ethnocentric
concepts, vague terms, etc.; follow a logical positivism. It seeks to mold social
knowledge according to grossly idealized model of hard sciences. The outcomes
of such strictly objective quest or study are generalisations that confirm either
the most obvious or the trivial concepts.
Blacks pure sociology is alien to the perspectives that have governed the
growth of sociology. SOL finds its origin in the normative study of politics, law,
economics, culture etc. and the conclusions of its social inquiry too gain meaning
from their contribution to politics, law, economics and other normative
branches.
According to Nonet, only the study of pure sociology will lead to illiterate
graduates. The study must encompass politics, law, economics, etc. that are not
just theoretical but also the major contexts of action that accumulate social
experience. This experience organized around the needs, interests, purposes,
aspirations, etc. and is wrongly ignored in the study of SOL. Berkeley program of
Nonet suggests that like other branches of sociology even legal sociology must
be jurisprudentially informed. Also, purely theoretical work would have a low
yield and so sociology of law must have a redeeming value of policy. This is the
response to the policies imposed in the society.

Bias and ideology

Black claims that an investigator inadvertently implants his ideals into his
scientific study and hence drifts from science to ideology. He holds bias as the
arch-enemy of science. A good social science requires disciplined disengagement
on part of the sociologist. This is why Black suggests the program of wilful
ignorance. Although ignorance and impoverished education have their own
demerits and risks, Black chooses the error of ignorance over the error of bias.
Nonet criticises this on the grounds that the act of choosing one error over the
other is in itself a bias and is contrary to Blacks general stand. His argument is
held to be flawed not because of his preference but because of the faulty logic.
This is especially because Black recognises that the acceptance of certain
standards by the investigator does not make the scientific findings invalid.
Nonet gives reasons for why the error of bias is actually more acceptable than
the error of ignorance. According to him the biases generate energy that makes
us think, so more the biases the better is science served. Since the scientific
validity of the findings is unquestionable despite biases, the growth of knowledge
is less hampered in the presence of bias than in case of total ignorance.
Compared to bias, ignorance is far more damaging to social enterprise. Bias may
lead to ignoring certain problems and considerations which may influence our
judgement, but if a policy of intrusive surveillance leads to more just and
efficient social programs, it is justified. Ignorance also diminishes resources we
have to analyse complex ideas, to make distinctions and uncover assumptions
and correct faults. To prefer ignorance is to choose ideology as well as
competence.
Two aspects distinguish applied sociology from what Black regards as
illegitimate evaluative sociology.
1. Standard of evaluation has a plain and specific operational meaning
2. Standard is drawn from a source other than the researchers own
preferences clearly discernible judicial decisions and statutes
It is still easy if the standard in a statute or a decision is clear, but a law is
backed by several statutes and decisions and hence can be confusing and
ambiguous. In such a case, choosing one of the criteria is to assume a partisan
standpoint. Clarity of meaning is what distinguishes the narrow specific policies
from the more general ones (like rule of law etc.) Whatever meaning a specific
policy may have, it has a larger purpose that it helps achieve in a particular
context. To evaluate the implementation of a policy is inevitably to further
determine the pursuit of larger ends. Thus, progressive clarification of values is
the purpose of policy research, as it is of jurisprudence. Thus, the sociology of
law must integrate jurisprudential and policy analysis.
Blacks emphasis on ignoring the purpose of the policy would lead to sterilize the
policy research. If the distinction between applied and jurisprudential sociology
suggests that the purposes and logic of jurisprudential inquiry differ
fundamentally from those of policy research, then it is doubly sterilized.
Jurisprudence grows on what it learns from policy. This is because the policy is
the realm of action where the abstract ideals are tested, redefined, elaborated.

Jurisprudence can remain factually informed only when examining that

experience. Second distinction Black draws between philosophers and applied
sociologists is that the former advocate their personal preferences whereas the
latter evaluate according to standards set by others. These personal preferences
are what are objectionable to Black.

Authority and Value

Believers of pure sociology claim that science should not be used to give
authority to values. Black does not contest the scientific validity, of the
evaluative research, based on the source of standard invoked. An applied
sociologist may personally believe in the policy which he assesses without
jeopardizing the legitimacy of his analysis. What concerns Black is that where the
applied sociologists lay explicitly the authority for the standard he studies, a
jurisprudential sociologist does not disclose. Failing to disclose the source makes
one vulnerable to charges of not separating the normative from the factual
elements- misleading the readers to believe that some normative statements are
scientifically demonstrated truths. Evaluations of legal effectiveness etc. should
not be shown as scientific findings but rather as statements of authors of
legislations, judges, anyone other than scientists. There are good reasons for
why social scientists do not disclose their sources, as they may be too many,
diverse and simply too obvious at times. For instance Blacks statement,
Democracy perpetuates inequality. Blacks rule is not that the scientists need
to disown their normative statements by citing an authority to them, but rather
they should disown them, period.
Application of the disowning rule Black proposes will result in a systematic
violation of his own major taboo, i.e. the social scientist shall not make policy
recommendations in the name of science or use his status as a scientist to
promote political philosophy. Such citing of authority is how scientists dissociate
themselves from the irrationality with which judges, legislatures, (and often they
themselves) make moral and political decisions. Implicitly or explicitly, such
statements criticize moral preferences on the ground that relevant factual
problems have been overlooked. They assume that moral judgements can be
better informed of the conditions. They suggest that a more informed moral
judgement is also more likely a better one as it may reach its purpose.
Black sees no justification in that law can benefit from an accurate sociological
analysis of the world it governs. He disagrees with the technocratic thought that
states that all moral problems may be translated into problems of knowledge and
science. If his anarchism entails distaste for all authority, he would be opposed to
even the authority of science!
When scientific inquiry increases the quality of moral and political science, such
uses should be proscribed from preserving scientific purity. Where science
touches controversial and divisive moral issues it loses its integrity and authority.
Such risks can be avoided by leaving aside such hot issues of moral and political
nature.

Jurisprudential Sociology
A pure sociologist may try to remove all normative words from his language but
there still exist concept that have a social scientific connotation such as law,
government control, democracy, equality, arrest, police, family etc. In order to
rule out normative meanings, pure sociology either deprives itself and its
readers of that knowledge or requires denying the existence of knowledge that
tis invoked by the words used.
For instance, a legal system involving active participation of citizens must absorb
the naivety, ignorance of citizenry. Either the language is English and the
reasoning is incoherent or the logic is proper and we are forbidden to think of
concepts such as intelligence, naivety, ignorance, limits, as aspects of
quality and effectiveness of knowledge.
To choose only jurisprudence is equally useless. Both jurisprudence and pure
sociology must be involved together. This mutually respectful ignorance can be
disturbed by sociology if it enlarges its ambit to include legal, economic, political,
and other normative thoughts to broaden the concerns of the discipline. A
jurisprudential sociology is a social science of law that speaks to the problems
and is informed of the ideas. To the extent law is coercive, purposive, open to
social knowledge, it is subject to variations that require empirical inquiry. Those
jurisprudential sociological variables condition the ends law can pursue and the
resources it must muster for the same.

COTTERRELL- The Sociological Concept of Law

Empirical legal theory has implicit the requirement of law to be viewed from the
outside, from the perspective of an observer of legal institutions, doctrine and
behaviour etc. It supports scientific distancing rather than perception of the
participant. Sociological analysis of law fills the lacunae of lawyers doctrinal
analyses of law.
Aims of sociological analysis:
1. Supplement to professional doctrinal analysis- aid lawyers legal policy
debate
2. Provide a substitute for doctrinal analysis revealing the unreality of legal
concepts+ legal policies that bypass doctrinal disputes
3. Explain in sociological terms, law as a doctrine, practices, institutionssubject matter of scientific analysis- distancing the analysis from functions
and purposes, that are themselves subject to inquiry
Motive - epistemological standpoint, allows a challenge to lawyers professional
conceptions of law

Critics - see it as fundamental reshaping of the legal institutions- demonstrating

possibility of social order dispensing with law
SOL based on the 3rd aim as given above- i.e. SOL is about treating the nature of
law as central importance rather than the effects of law. This objective leads to
development of empirical legal theory, demanding a rigorous concept of law.
Sociological concepts of law are varied, more than those presented by the AngloAmerican literature on normative legal theory. These can be easily categorised.
The minority views are seen as criticisms of the prevailing orthodoxy. Fullers
central ideas of functional character are undermined in favour of positivist
elements of his theories. It is therefore easy to identify powerful orthodoxies,
explained in terms of the common underlying professional aims and outlooks of
lawyers- influences the outlook of jurists.
Sociological concepts of law, less sophisticated and elaborate as compared to
empirical legal theory. This is because for the latter, the definition and
conceptualization of law is an end in itself. For the former, this is a stage in
organising the empirical study within and beyond the legal doctrine.
Sociological studies are intimidated by the massive literature of normative
theory. To analyse social significance of legal doctrines, SOL must confront the
jurists conceptions of nature of legal doctrines. The legal sociologist must
become a lawyer to go beyond the lawyers conception of law.

SOCIOLOGICAL CONCEPTS OF LAW

Juridical Monism
Sociological concepts of law are sub-divided into categories.
1. Lawyers conventional definitions of law - In Western societies, law is seen
as law of the state as seen by lawyers, state courts, etc. In politically
organised societies, this concept helps remove by definition many
problems of relationship between law and state.
Kelsen - state is a legal order seen from a particular point of view
Marxist - see law as apparatus of state power. Empirical theory of law
considered unnecessary when law is seen to depend solely on nature of state.
No need seen to understand law beyond the conceptualisation of the lawyers.
Conventional definitions found adequate, since law is not the primary object
of analysis.
Non Marxists have also adopted similar conceptions of law. Donald Black sees
law as governmental social control.
Podgorecki - practical definition of law as lawyers law.

Roberto Unger - law is the official and autonomous legal order of the
modern state.
Talcott Parsons - lawyers law- distinct species of social norms

Juridical Plurism
Law in the contemporary society refers not only to state but also law applied by
international agencies, customary, territorial, mercantile, ecclesiastical law etc.
State or lawyers law is only one form of law and not to be seen as dominant in
sociological terms. Law is seen as existing at different levels, in association with
different institutions, social systems etc. These conceptualisations are significant
because the legal ideas and problems pervade social life. Pluralistic
conceptualisation stresses on the pervasive social importance of legal ideas as
responses to problems of social interaction. Pluralists believe it to be a possibility
of interpreting complex social dimensions, though it is also criticised by some as
being unable to explain the relationship between levels of law.

State law as a dominant, but no exclusive form of law

Compromise between two conceptualisation of law is found. Law is seen as that
beyond the lawyers law, but also for limited practical purposes in contemporary
societies, it is equated with law as a lawyers law. This approach treats
institutional characteristics of contemporary state law as essential to definition of
law. Law exists to the extent this institutional characteristic is present.
3 variants to this approach, based on 3 institutional characteristic:
1. Enforcement - [Webers definition of law- order externally guaranteed by
probability of coercion to bring about conformity. So, essence of law is the
recognisable police force- found significantly in developed states, so much
so that state law dominates social reality.]
2. Dispute processing - [made possible important advances in
anthropological analysis of social control mechanisms, also, theoretical
study of the relationship between formal and informal dispute institutions.
Much of the discussions of informal, community based dispute institutions
are dominated by state system of courts. ]
3. Doctrinal development - [concept of law as a way of reasoning or
problem solving. This approach sees law as a variety of social rules with a
developed mechanism for their creation, interpretation and application.
Integrity of doctrine emphasised, whatever institutional process the
doctrine may have developed under. Legality implying procedural
prerequisites, consequences of coherent development of doctrine,
becomes the essence of legal.] Criticism- doctrinal characteristics of
particular legal order constitutes an essence of law.

Discussion: About whether or not law is a concept restricted only

to State law?
The study of law does not preclude the study of other social phenomena relevant
to legal analysis. Using the term law in studies of regulation or social order,
makes clear the object of study, separating it from other phenomena.
For WIDER - To restrict law to lawyers law means to limit the scope of law, while
retaining what is important and familiar to the lawyer. To see law as wider is to
raise the hypothesis that the legal problems faced by the lawyers etc. may also
arise in different kinds of normative system. Assuming that these problems are
restricted to lawyers law is a restrictive view in itself. Widened perspective views
as sociological necessity, the possibility of legal thought pervading social life.
These legal thoughts and processes are then not restricted to the narrow
professional sphere.
For WIDER- SOL is best served by the pluralist method. This plurality is inevitable
more than only desirable. These anarchist approaches of legal analysis shows
concern towards the non-state law systems, unlike formal law systems. If
however the state law systems prevail, then those problems of law that actually
pervade social life, will be seen as distinct from these actual and potential
regulatory systems where they remain or reappear.
Against WIDER- Problems of a pluralist approach- (that which sees law as a wider
perspective)- relationship between state law and other normative order
unsolved.
For WIDER- So, even though the studies must have the lawyers law as the
central thought; for a better analysis and reach into the society of law,
hypothesis wider than the lawyers law should be made central. This is to show
that the characteristics of the state legal systems are not unique.
Against WIDER - There is a view that suggests that the features of state law and
its institutions will not be replicated in informal regulatory processes or in social
systems smaller than the nation state.
For WIDER- Experience of social organisations yield insights into problems of
normative order, that are usually seen only in relation to lawyers law.
For WIDER- Simpler legal orders of simpler social systems, provide legal insights
parallel to those of complex societies
For WIDER- Helps make assessments of the nature of changes in patterns of
regulation with changing social significance of lawyers law

Whether SOL restricted to lawyers law is gradually decreasing in importance?

Bureaucratic regulations, control have developed in close alliance with orthodox

legal forms, yet beyond the reach of the lawyers analysis. Much social theory
supersedes lawyers law through administration and control.
FINAL VERDICT - (chooses a mid way)
A concept of law that treats lawyers law as central but treats the normative
systems as directly comparable and closely related theoretically, is of particular
utility in confronting contemporary problems.

Doctrinal Focus of SOL

Such a concept of law offers a relatively simple means of expressing theoretically
the position of state law in relation to other forms of law. State law is seen to
hold dominance over normative law to the extent of sanctioning agencies. To
treat coercion as the key defining element of law raises problems- as presented
in the criticism of the early Soviet legal theory.
Dispute processing - law resolves disputes less often than cool them out. It
provides a concept of a system of order which does not entail the existence of
rules, doctrines as essential to existence of law. A small no. of disputes go to
court, and majority are settled in other ways such as arbitration etc. Thus while
dispute processing has been an important modern focus of SOL, writings
propagating this focus seek to replace the concept of law. Rather than dispute
processing, what is more central to law is the production of ideologically and
technically important doctrine by courts and other state institutions.
An institution for the development and organisation of doctrine is what
distinguishes law from rules, concepts and principles. These institutions may not
all at once create doctrine, apply and enforce it, but their purpose is to show that
law is not just a disembodied doctrine. Law is a doctrine produced in, embodied
in and legitimising institutional practices. These practices may vary in different
social systems.
View of law as doctrine makes the ideological aspects of law seem important,
and incorporates this in the enforcement and dispute processing.
[Ideology of bourgeoisie] ---- lead to ---- [their authority to set agendas for
discussion/debate] ----lead to ---- [their interests captured as abstract
foundations of the legal system]
Law of doctrine1. Means of developing and sustaining ideology
2. Technical means by which the exercise of power is formalized
AT THE END, CHOICE OF A CONCEPT OF LAW IS ONLY A STARTING POINT FOR
ANALYSIS. BUT IT MAY ALSO AT TIMES INFLUENCE THE AGENDA OF RESEARCH
AND FORMS OF SOCIOLOGICAL IMAGINATION

MORAL PASSAGE: THE SYMBOLIC PROCESS IN DESIGNATION OF

DEVIANCE - JOSEPH GUSFIELD
Acts of the agents of government in furthering public and societal interests, limit
specific group interests. Their acts commit the group to action or to perform
coordinated act for general welfare. Their representational character helps them
not only in the reallocation of resources but also to define the public opinion,
norms of morality and what acts violate these norms.
A distinction is drawn between the instrumental and the symbolic functions of
the legal governmental act. Governmental acts, legislative enactments and
judicial decisions are taken to affect the behaviour of citizens in an instrumental
manner through direct influence over their actions. Instrumental functions
operate through enforcement of laws. Symbolic aspects do not depend on
enforcement. They invite consideration rather than overt reaction. It is
subjectively perceived and connotes what the audience may view it as. The
symbol thus acquires an immediate intrinsic significance. Behavioural
consequences are not seen as means to a fixed end but as an act, gesture
important in itself.
Governmental action takes a symbolic import as it affects the designation of
public norms. These are seen as statements of what is acceptable in public
interest. Law is seen as symbolizing the public affirmation of social ideals and
norms as well as direct social control.
Certain laws are honoured as much in breach as in performance. These are
labelled as patterned evasions of norms by Robin Williams. For instance,
gambling, prostitution, abortion, etc. These evasions function to minimize the
conflicts between cultures by utilizing one set of norms as public morality and
another to control behaviour.
Despite the harmonizing effect of the patterned evasions, the passage of
legislations, acts of officials, decisions of judges are seen as gestures of public
affirmation.
1. Public affirmation of a norm often persuades listeners about the
consistency of norm and behaviour
2. Public affirmation of moral norms directs major institutions to its support
3. Expresses the public worth of one set of norms as compared to another.
Demonstrates which culture has legitimacy over another. Accordingly the
carriers of the affirmed culture have enhanced social status whereas
others are degraded as deviants.
Instrumental functions exist despite the patterned evasions.

Deviant non-conformity and designator reaction

In Dukheims analysis, all proscribed actions are threat to the existence of norms.
Due to patterned evasions the instrumental functions may weaken but the
symbolic functions remain. Standards of charity, mercy, justice, may be violated
everyday but they remain publically approved as virtues. Their roles as ideals are
not dependent on daily behaviour.
The repentant deviant
Deviance is a moral lapse, fall from grace to which everyone must aspire.
Repentance by a deviant confirms the norms. Repentance and redemption go
hand in hand in court and church. For instance the juvenile offenders are seen as
at least partially committed to the dominant social order in that they exhibit guilt
and shame frequently.
According to Sykes and Matze, repentance is also used to soften the indignation
of law enforcement agents. Juveniles who appear remorseful are treated leniently
and even dismissed. This is what leads to the preference of middle class
youngsters to lower class delinquents.
The sick deviant
The open admission to repentance frees the sinner of his sin. The threat to the
norm is removed and norm if intact. Acts of sick and diseased people are
irrelevant to the norm. they can neither attack or defend it. For instance, a sick
person in need of morphine does not attract public hostility and apparatus of
enforcement agencies. Talcott Parsons indicates how the designation of a person
as sick, changes the obligations which others have towards the person and his
obligations towards them.
The enemy deviant
There exist discrepancies between middle class and lower class moralities.
Gambling (in Cornville) may be seen as a respectable crime, just as antitrust
behaviour in other levels of the social structure. In these cases, the validity of the
public designation is doubtful, since the deviant is not sick or repentant, but
upholds an opposite norm. He considers his behaviour proper and derogates the
public norm as illegitimate. He refuses to internalize public norm in selfdefinition. Mostly seen in business crimes.
To designate legitimate behaviour as deviant depends upon the superior power
of the designators. If the deviant is of a weaker group, it may lead to political
conflicts and cultural clashes, in deciding whose morals deserve public
affirmation. There is domination without corresponding legitimacy. There arises a
great need for the designator to strengthen and enforce the norms. Problem is
not that increased power of Cornville will see more gambling but that it will
become a legitimate business.

The cynical deviant

These deviants are not a threat to the norms. Their designation as deviants is
supported by wide social consensus. Their behaviour only calls for social
management and repression.

Drinking as a changing form of deviance

The repentant drinker
He is brought back into the fold by moral persuasion and techniques of religious
revivalism and legislative goals. His error is the sin of lapse from a shared
standard of virtue. Most successful move to eradicate alcoholism in America was
during the move from a whiskey era to a more moderate beer. Urban middle
class was shown as example to immigrant lower class, for route to economic and
social mobility. Urban middle class provided much organizational leadership,
though temperance and prohibition movement sin the rural areas drove the
cause. Norm was intact in places where the drinking was controlled. Limited
enforceability in metropolis did not matter as people knew whats right. Hard
drinkers not as common in America today; not the 1915 high
The sick drinker
Chronic alcoholism was seen as an illness after 1933. This designation renders
the behaviour indifferent to the status of the norms enforcing abstinence. During
the temperance movement, problems of drinking were removed from church and
placed with universities, medical clinics etc. The drinkers were to be handles with
care and protection and not through police or clergy.
Replacement of the norm of sin and repentance by sickness and therapy
removes the guilt and immorality of the act.
Movements of moral passage
Deviance designation has histories and these definitions are themselves subject
to change. It is open to political power, public opinion and social movements,
moral crusades etc. What is criminal today may be seen as legitimate in the
future. Deviants even though belonging to a small group try to influence the
process of designation. The moral passage achieved reduces the sanctions
imposed by criminal law and the public acceptance of the deviant designation.
This is illustrated in the acceptance of drinking, marijuana, LSD, homosexuality
etc.

To read
1. Industrial justice.

2. Beyond constitutionalism.
3. Citizenship.