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 under-
trials 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.
Galantar’s 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 ethnocentricism- 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! (ethnocentricism- 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 one’s 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”. Zake’s claim has been criticised for recognising law as a phenomena rather
than a concept. He focuses on accepting everyone’s 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
consuetud” (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. Can’t 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.

Weber’s 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.

Weber’s 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 Weber’s 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. Marx’s 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. Marx’s analysis of the 19th
century Factory’s Act, presents law as being an object and outcome of class struggle rather than
simply reinforcing bourgeoisie dominance. The restriction over the work day’s 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. Complex whole
2. Includes norms regulating human behaviour
3. That are social norms
4. The complex whole is orderly
5. Order is characteristically a coercive order
 6. Institutionalized
7. 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 non-
legal 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 reinstitutionalized 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 reinstitutionalized 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 hasn’t been accepted as a
custom in society.

Social catastrophe and social indignation are sources of law and much resultant change in custom.
This 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

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 kind- science 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.

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.
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.

Black’s ‘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 Black’s 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 researcher’s 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.

Black’s 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 Black’s statement, “Democracy
perpetuates inequality”. Black’s 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 lawyer’s 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, institutions- subject 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 Anglo- American
literature on normative legal theory. These can be easily categorised. The minority views are seen as
criticisms of the prevailing orthodoxy. Fuller’s 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 jurist’s 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 ‘lawyer’s law’.

Roberto Unger- law is the official and autonomous legal order of the modern state.

Talcott Parsons- lawyer’s 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- [Weber’s 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 doctrine-

1. 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 Dukheim’s 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 self-definition. 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 what’s
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.