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REDIRECTING SOCIAL STUDIES OF LAW
RICHARD L. ABEL
I. LEGAL INSTITUTIONS
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806 14 LAW & SOCIETY / SPRING 1980
A. Legal Profession
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ABEL 807
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808 14 LAW & SOCIETY / SPRING 1980
B. Courts
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ABEL 809
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810 14 LAW & SOCIETY / SPRING 1980
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ABEL 811
D. Juries
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812 14 LAW & SOCIETY / SPRING 1980
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ABEL 813
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814 14 LAW & SOCIETY / SPRING 1980
F. Administrative Agencies
Research on administrative agencies encounters many of
the problems already discussed. Agencies tend to receive less
attention than courts despite the fact that they handle many
more cases. Indeed, this may be one of the causes: front-line
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ABEL 815
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816 14 LAW & SOCIETY / SPRING 1980
G. Legislatures
Although most laypeople asked to name the principal legal
institutions of our polity would probably make the legislature
their first or second choice, it has been largely overlooked by
social research on law. There are several possible reasons for
this neglect. First, sociolegal studies have been dominated by a
legalist paradigm: if institutions are ranked in descending
order according to the ease with which they can be fitted into
this paradigm-appellate courts, the Supreme Court, trial
courts, lawyers, juries, extrajudicial dispute institutions,
administrative agencies, legislatures-we can see a rough
parallel to the quantity of scholarly energy devoted to each.
Second, the analysis of lawmaking requires a macrosocial,
historical perspective rather than the microsocial, synchronic
approach of most contemporary sociology. And finally,
legislation was a well-established subject within political
science long before social studies of law emerged as a
semiautonomous field.
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ABEL 817
A. Criminal Law
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818 14 LAW & SOCIETY / SPRING 1980
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ABEL 819
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820 14 LAW & SOCIETY / SPRING 1980
B. Civil Law
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ABEL 821
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822 14 LAW & SOCIETY / SPRING 1980
A. Equality
Social scientists address the issue of equality most
frequently within the criminal justice system; indeed, that
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ABEL 823
problem may attract more attention than any other in the field.
This is not surprising; the legitimacy of the law is under
greatest strain when it is most visibly coercive, and that strain
can be aggravated or reduced if the coercion is shown to be
biased or evenhanded. A similar obsession with the criminal
law and with justice for the underdog can be found in fiction,
the mass media, and even the career ambitions of prelaw
students. Equality and bias with respect to such variables as
race, class, sex, and age are studied at each stage of the
criminal process at which a decision is made, and at all of them
together: rule making, detection and reporting of crime by
citizens and the police, apprehension, charging, bail, legal
representation, pleas and plea bargaining, diversion, jury
selection, the behavior of all essential actors during trial, jury
deliberations, verdict, sentence, imprisonment, parole, appeal,
and executive clemency. Great methodological sophistication
is shown in measuring inequality, not just in statistical
techniques but also in moving between different levels of
analysis (individual and institutional), looking behind
apparently legitimate distinctions for the hidden biases they
conceal, and separating legal and extralegal variables. And yet
it is not clear that the amount of scholarly energy devoted to
proving or disproving bias can be explained or justified in
purely scientific terms, any more than these are adequate to
account for the intensity and repetitiveness of the debates over
general deterrence or those between advocates of specific
deterrence and labeling theory. For it is hard to imagine what
evidence would ultimately resolve the issue or sway adherents
from one side to the other. Rather, the debate appears to
reflect more fundamental disagreement over the legitimacy of
inequality in society.
Far less attention has been paid to inequality in the
operation of civil law. For one thing, most civil law interaction
is facilitative, and thus noncoercive, and even in litigation the
plaintiff, at least, is a free agent. For another, the invocation of
civil law outside the courtroom involves activity whose low
visibility renders it difficult to study; consequently, most
research has been restricted to contentious behavior in official
forums. A third reason is that both the categories to be
compared and the meaning of equality are less obvious. It is
far simpler to compare individuals accused of crimes and
perceive differences in punishment in terms of race or gender
than to compare an individual and a corporation in terms of the
influence they exert over contractual conditions or their
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824 14 LAW & SOCIETY / SPRING 1980
B. Legitimacy
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ABEL 825
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826 14 LAW & SOCIETY / SPRING 1980
IV. CONCLUSION
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ABEL 827
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828 14 LAW & SOCIETY / SPRING 1980
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ABEL 829
seek legitimation and asking what the public views as just and
where it perceives significant injustice in the operation of law.
The prevailing ideology of western legal institutions is a
liberal legalism that promises both efficacy and justice. It
generates sociolegal research that repeatedly reveals instances
of ineffectiveness and injustice but, in the process, implies that
both can be corrected, thereby confirming and strengthening
the ideology. Progress, both intellectual and social, can only be
achieved by research that challenges the ideology directly in an
attempt to develop alternatives.
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