Sociology of Law: Origin, Subject Matter and Developments

Synopsis: This article gives a brief overview of the broad subject matter of Sociology of Law. By understanding how the multifaceted sub-discipline varies from the traditional approaches, exploring how sociology can be used in different ways in legal studies, and providing various modern approaches to socio-legal discourses, the article aims to explain how sociology and law can interact and intermix as one single field of investigation.

Understanding Sociology of Law:

As the name suggests, Sociology of Law is an interdisciplinary approach to studying Law and Sociology. The main design of the sub-discipline is to understand law from the lens of society and the norms within it. Laws cannot be devised or implemented by themselves–in order to be practically applicable, they need to exist within society. This is what Sociology of Law is concerned about. Because laws do not hold any value if they do not adhere to the social norms, it is important to include the role of society and the values and norms which exist within it, into the traditional studies of law.

However, there is some contention about whether Sociology of Law should be considered a sub-discipline within the broad subject of Sociology, or whether it should fall under the field of law and society, as one of the approaches of dealing with it. To understand the dilemma better, let us first define what Sociology of Law is.

Among the many definitions for the subject matter, it is difficult to choose a single one that adequately summarizes the meaning of Sociology of Law. Timasheff (1937) defines it as “a new science, (which) studies human behavior in society in so far as it is determined by commonly recognized ethico-legal norms, and in so far as it influences them”. People are divided in their understanding of which broader subject, Sociology or Legal studies, should the sub-division fall under. Some insist that Sociology of Law can only be a part of Sociology because the maintenance of law is important for the effective functioning of every society which is dealt with by Sociology, while others believe the subject to be simply a research field that connects Law and Sociology. Whichever discipline it belongs to, Sociology of Law mainly focuses on combining Sociology and Law, and also has to draw from the other social sciences of Psychology, Criminology, Geography, Anthropology, etc.

Origins of the sub-discipline:

The works of Baron de Montesquieu (1689-1755) hold the origins of the Sociology of Law. While focusing mostly on the natural laws, Montesquieu explained the laws of various societies and compared them to illustrate how laws depended on the geographical location and, more indispensably, on the culture of the societies, their social conditions, and historical backgrounds. Whether or not laws were favorable could be identified based on how much justice they provided, and whether they were morally acceptable or not.

Sociologist Max Weber in his work ‘The Types of Legitimate Domination’ defines one of the three types of ideal authority as rational-legal domination. This type of authority does not depend upon a person themselves. Certain norms in the society endow legality to the rules and the people who hold the position of power. Law thus becomes rationalized by the social values and norms. Another sociologist, Emile Durkheim, identified two types of laws: repressive and restitutive. Repressive laws are mainly visible in societies with ‘mechanical solidarity’ i.e., simple societies, where people are related to others in the society because of the ‘likeness’ they share. To instill such solidarity, repressive laws are imposed on the society as a whole, and thereby to the people who belong to the society as well, in such a way that the individuals and society become interdependent and the individual does not exist as separate from the society. In ‘modern’, complex societies, on the other hand, there exists organic solidarity which forms because of specialization of labor, which creates reliance of one member of the society upon others. Because everyone is different from everyone else, there is a greater level of individualization, and a higher degree of interaction, which requires to be directed by some laws to ensure the effective functioning of society.

Karl Renner, Kahn-Freund, Eugen Ehrlich, and Georges Gurvitch are among others who contributed significantly to the development of the Sociology of Law.

Sociology of Law vs. Traditional Law Studies:

Traditional legal studies focus on law only as a body of rules, regulations, and mandates imposed on people and their institutions according to decisions taken on them. However, these maxims exist outside the realm of society i.e., when they are put into action, they are isolated or separated from society, which they indeed originate from. However necessary they might be, without taking into account the social context from which they arise, law and its associated principles cannot be presented, examined, or established in their full capacity. Here, the Sociology of Law comes into play. The subject matter of Sociology of Law also focuses on law, but from a more social aspect. It takes into consideration the changes and development in institutional procedures and how they take place concerning the socio-economic, political, and cultural structure existing within society. While the traditional study of law still tries to disengage itself from other institutions in society as a separate, self-sustaining entity, yet its fundamental nature interlinks it with them, both in operations as well as historically, a fact Sociology of Law is primarily concerned with.

Using Sociology to Understand Legal studies:

There are three ways of approaching law and legal studies sociologically:

1. Law and Society: This approach was developed as an endeavor on the part of sociologists who felt the need to integrate society into the study of law, and create a separate field for examining it. It is similar to Sociology of Law in the sense that it identifies the fundamental principle that law cannot exist outside or unaffiliated to society. However, it differs from Sociology of Law because while including the social context within the legal, it is not restricted to sociology, in theory, or its application.
2. Sociological Jurisprudence: Although the two can semantically be interchanged, Sociology of Law is differentiated from Jurisprudence. Sociology of Law focuses mainly on the description or theoretical aspect of legal studies from a sociological approach. Sociological Jurisprudence, on the other hand, is also known as ‘functional jurisprudence’, with other equivalents being ‘jurisprudence of interests’ and ‘jurisprudence of social engineering’. This is because it focuses directly on the law-based institutions and practices in society, i.e., it deals with existent problems within society and aims to devise legal solutions to them, such that law, as an effective means of solving oppositions between individuals, in society.
3. Modern Approach – Sociology of Law: In this approach, Law is viewed from a variety of paradigms that exist in sociology. Conflict theorists, for example, describe the power facet of legal behavior, while functionalists see it as imperative to ensure social regulation. Understandably, symbolic interactionists theorize how the law in its present form developed to cater to the needs of the social and moral conditions. Donald Black, an American sociologist, devised sociology of law as a ‘pure science’, whereby it concentrates on the outcome of legal conditions. In other words, the sociology of law is a sociological understanding of Law.

Recent Developments in interpretations of Sociology of Law:

1. Globalization: Defined as “an ongoing process that involves interconnected changes in the economic, cultural, social, and political spheres of society” (Cole, 2019), globalization brings together components of both sociology and law. From a sociological point of view, globalization is the process that supports and enhances the dispersion of different traditions, norms, values, beliefs, and ideas, and provides for an intermixing of these between different cultures across the world. This cultural diversification creates the base on which all economic and political undertakings can function without friction. Law becomes an important system to provide a common, legal ground between nations for overcoming cultural differences, respecting each other’s cultural values, and having a unanimous and unequivocal approach to international trade and communication. In other words, to allow for harmonious economic exchange between two countries while ensuring cultural amity, a well-defined legal system is necessary in the case of globalization.
2. Legal culture: It is defined as the “opinions, attitudes, values, and expectations with regard to law and legal institutions”. In other words, it defines the norms, beliefs, customs, practices, and expectations which determine the operation of legal institutions and execution of legislated rules, regulations, and orders. To put it more simply, legal culture identifies the social conduct and approaches deemed appropriate for legal systems. Because cultural and historical circumstances determine the expected social behavior in a particular place or time, legal cultures vary from one region to another. In yet other words, even if the legal codification of two countries are alike, the way they are comprehended and carried out, in reality, might be widely different. Legal cultures are leveraged in the socio-legal methodology of globalization, along with legal pluralism.
3. Legal pluralism: Davies (2010) describes legal pluralism as “the idea that in any one geographical space defined by the conventional boundaries of a nation-state, there is more than one law or legal system”. In the words of David S. Clark in his book ‘Encyclopedia of Law and Society: American and Global Perspectives, legal pluralism is the concept used for describing the multilayered nature of laws within the same state or society, where the origins of the ‘legitimacy’ accorded to each layer of laws are varied. Using a comprehensive approach of including both state-authorized legal institutions and persons, and unofficial, normative sanctions, legal pluralism broadens the definition of law.
4. Law and Feminism: Through Feminist Legal Theory or Feminist Jurisprudence, feminism has found a place within the subject matter that is crucial to the feminist movement. Feminist Jurisprudence primarily focuses on addressing the issues of historical inequality between the sexes on social, political, and economic grounds, and implementing theory into practice to reform the idea of gender in legal practices. Identifying the patriarchal influence on legal systems, and the consequent economic, political, and social impact on girls, women, and non-cisgender people, feminist jurisprudence seeks to reduce the friction in the availability of law to the disadvantaged.

German sociologist Niklas Luhmann is also known to have first introduced the biological concept of ‘Autopoiesis’ into the field of Sociology of Law, followed by Gunther Teubner.

The Law and Society Association (LSA), Research Committee on Sociology of Law (RCSL), and sections in sociological organizations such as the American Sociological Association (ASA), journals such as the Law and Society Review, International Journal of the Sociology of Law, The Journal of Law and Society, etc., are a few institutions and resources dedicated to advancement in socio-legal studies.

References

Banakar, R. (2011, February 1). The sociology of law: From industrialisation to globalisation. SSRN. https://ssrn.com/abstract=1761466

Davies, M. (2010). Legal pluralism. In Oxford Handbooks Online. Oxford University Press. https://doi.org/10.1093/oxfordhb/9780199542475.013.0034

DurkheimE. (2013). The division of labor in society (S. Lukes, Ed.; W. D. Halls, Trans.). Palgrave Macmillan.

Francis, L., & Smith, P. (2009). Feminist philosophy of law. The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/feminism-law/

“Legal Culture .” Encyclopedia of the American Constitution. . Retrieved June 02, 2021 from Encyclopedia.com: https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/legal-culture

Timasheff, N. S. (1937). What is “sociology of law”?. American Journal of Sociology, 43(2), 225–235. https://doi.org/10.1086/217681

Weber, M. (2019). Economy and society: A new translation (K. Tribe, Trans.). Harvard University Press.