The sociology of law extends criminology’s concern with coercion to incorporate studies of the role of law in regulating and facilitating social order.
Early sociologists thought changes in the nature of law signaled the transition to capitalism. Maine (1861) described this as a movement from a society based on status to one based on contract. In traditional societies, law expressed a sovereign or collective will, imposing order through repressive sanctions and sustaining relationships based on inherited or ascribed positions. Modern law facilitated free, autonomous and episodic relationships. Contemporary legal anthropologists reject this representation of traditional law but the image has been influential. Durkheim saw modern law as a solution to the social and moral fragmentation generated by the division of labor. Marx viewed law primarily as an ideological tool, supplying legitimacy to the power imbalance between owner and laborer. Weber adopted Marx’s recognition of the role of law in legitimizing state power but also emphasized its contribution to rationalization in modern societies.
The contemporary research agenda is summarized in the title of a classic paper: naming, blaming, and claiming (Felstiner et al. 1980-1). Naming is recognizing that a problem may have a legal response. Blaming is identifying who is responsible for the problem and seeing law as a way to compel them to make some redress. Claiming is the process of mobilization that brings the problem into the legal system.
Claims are the tip of an ”iceberg”: potential causes for litigation are endemic in everyday life, but are rarely named as such (Greenhouse et al. 1994). Although many people believe that a ”compensation culture” has developed, with both citizens and corporations, stimulated by lawyers, increasingly resorting to litigation, there is no substantial empirical evidence to support this. This perception is partly the product of a popular imagery of law that massively overstates the role of trials. Whether criminal or civil, most legal outcomes are negotiated.
It is argued that law now contributes mainly to the social and economic integration of an elite. People who are excluded are offered two options: alternative dispute resolution (ADR) and regulation. ADR joins two very different interests: social programs intended to strengthen the capacity of poor neighborhoods to resolve their own disputes; and governmental actors trying to reduce public expenditure. ADR reduces legal access for poor people while telling them that it is morally preferable for them to solve their own problems.
Regulation involves the screening of social and economic activity by a bureaucracy empowered to administer legal penalties or to bring cases to court. It is particularly evident where harms are diffuse, where there are great economic inequalities between parties, or where there are great informational inequalities. As with ADR, private enforcement by individual litigants is held to be morally preferable to collective action by a ”nanny state.”
The field’s founders observed a world of ”small states,” with limited spheres of action, and looked to develop replacements for traditional legal forms in response to emerging social and economic issues. A modern world required modern law, as part of its system of governmentality. The perceived crisis of that system has allowed its critics to roll back many state-based elements, returning individual legal mobilization to a position that it has not occupied for some generations.
- Cotterell, R. (1992) The Sociology of Law: An Introduction (Second Edition). Butterworths, London.
- Felstiner, W. L. F., Abel, R., & Sarat, A. (1980-1) The emergence and transformation of disputes: naming, blaming, claiming. Law and Society Review 15: 631-54.
- Greenhouse, C., Yngvesson, B., & Engel, D. (1994) Law and Community in Three American Towns. Cornell University Press, Ithaca, NY.
- Maine, H. (1861) Ancient Law. Murray, London.