banakar_merging law and sociology_pp. 44-53
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The lnside and Outside 1Law 5
CH PTERTWO
The nside and Outside
o
Law
Introduction
t
was concluded
in
the previous chapter that the theoretical
constitution
of
mainstream sociology could not by itself explain away
the fragmentation of socio-legal research. In this chapter, we continue
the search for the sources
of
the problem by turning our attention to
the forms of knowledge which are produced by observing and
\
experiencing the internal or external realities
of
law.
As argued in the introductory chapter, we can distinguish at least
four standpoints each capable
of
producing a specific form
of
knowledge and interest pertaining to law. The first standpoint
is
based
on the perspective
of
insiders who participate
in
and reproduce legal
processes and various institutional practices associated with law (the
inside participants). The best example
of
this group
is
practicing
I
lawyers such as judges or barristers. The second perspective belongs
N
to insiders who observe legal processes without participating in them
(the inside observers). A legal scholar systematising and expounding
legal decisions and cases or a solicitor advising a client or briefing a
barrister can be long to this second category. The third category
consists
of
outsiders to law, who for a limited period
of
time,
participate in legal processes (outside participants). Examples of this
group are plaintiffs, defendants, juries, lay judges and witnesses. The
fourth perspective belongs to those who observe legal processes and
institutional practices
ofthe
law from the outside without participating
in legal processes (the outside observers). Sociologists studying law 's
effects or journalists reporting on trial proceedings can belong to this
second category. (See Diagram One on the next page.)
The perspectives described aboye are not mutually exclusive and,
in principIe, the same person can entertain more than one such
perspective
in
a day's work. A lawyer, for example, can act as
an
inside participant in one social setting by making a judgement and as
an outside observer
in
another setting by providing legal advice. In the
same day' work, the same lawyer might even act as an outside
participant by appearing before a court as a plaintiff or defendant. The
important characteristic
ofthese
perspectives, which we shall return to
further on, is that they interact with and inform each other. The
totality of what we perceive as law
is
1 shall argue, the outcome the
interaction of such perspectives at any given time and place.
Participation Observation
Insider's
Perspective
Outsider's
Perspective
l. Inside Participant 2. Inside Observer
- Judges - Legal Advisors
- Barristers - Legal Scholars
3.
Outside Participant
4.
Outside Observer
- Juries - joumalists
- Plaintiffs
sociologist
Diagram One
The inside participants, such as judges, and the inside observers, such
as legal advisors, share the practical insider attitudes and legal know
how, which the outside participants and outside observers usually (but
not always) lack. Since the focus
of
this chapter is on forms
of
knowIedge and understanding of law, 1 shall in the following employ
the concept
of
"Iawyer" to represent the insiders who per definition
posses a legal know-how and their knowledge is rooted in the internal
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48 Merging Law and Sociology
system , is to transcend the focus on laws, legal doctrine and the legal
system in order to construct a theoretical understanding of that legal
system in tenns
of
the wider social structures .3 That
is
why the law,
legal prescriptions and legal definitions are not assumed or accepted,
but their emergence, articulations and purpose are themselves treated
as problematic and worthy ofstudy .4
The second orientation is committed to a juristic paradigm, which
reaches its extreme form in Evan s fifth approach, which he called
methodologic al analysis where sociology
is
used not for substantive
analysis but basically as a tool for data coIlection.
5
This orientation
distinguishes itself by implicitly or explicitly accepting the hegemony
of positive law
in
relation to society. Thus, it tends to treat the nature
of the legal order as unproblematic.
6
t is worth noting here that this
type of methodological analysis, which
is
in its extreme fonn rare,
is
interestingly enough methodologicaIly problematic. Within the
philosophy
of
social science it is maintained that there exists an
intricate relationship between sociological theorising and reflection
(or the images of the social world used as a point of departure for our
studies), on the one hand, and the development, employment and
application
of
various methods of research, on the other. Assuming
3
C. M.
Campbell and Paul
Wiles,
The Study of
Law in
Society in
Britain in
(1976)
10 Law and Saciety Review
547-78 at 553.
4
Ibid.
5 Campbell and
Wiles
also argue
in
a similar fashion sharply
distinguishing between sociology of law-which
they view
as a speciality
within general sociology aiming
to
illuminate
the
relationship between
legal
order and social order-and socio-legal studies,
which
according to them
focuses
on
the problems o f justice and law. See C. M.
Campbell and Paul
Wiles,
The
Study
ofLaw in Society in Britain in
(1976)
10 Law nd Saciety
Review 547-78.
6 Also see Roscoe Pound, Sociology of
Law
and Sociological
Jurisprudence
in
(1943) 5
University l Taranta Law Jaurnal
at
2-3.
Pound
distinguished between sociology of
law, which
proceeds from sociology
towards law and sociological jurisprudence
which
proceeds from historical
and
philosophical jurisprudence to utilization of social sciences
and
particularly of sociology,
toward
a broader and more effective science of
law .
The lnside and Outside
1
Law 49
that this conclusion is correct, one must view any analysis
of
the law,
or any other social phenomenon for that matter, that claims to have
been conducted exclusively to gather data, without fonnulating and
reflecting on its underlying assumptions or its socio-political aims and
aspirations, with great suspicion. This is also why divorcing the
juristic approach (or socio-legal studies as it has been used to
indicate the academic lawyers' interest in the application of social
scientific methods of analysis) from a more sociologicaIly and
theoreticaIly aware analysls of the law (or the sociology of law )
amounts to one of
the most damaging dichotomies of the socio-legal
field. At the same time this question is difficult to debate criticaIly
because, in the short term, the academic lawyers who are making their
careers in law gain little in terms of the scientific stakes of their
field by making a serious commitment to social sciences. So,
in
a
recent piece, we find Phil Thomas and SaIly Wheeler celebrating the
fact that while sociology
of
the law is most marginal to curriculums
in both Sociology and Law and has little foothold in the academic
research community, socio-legal studies has gone from strength to
strength .7 The socio-legal studies that Wheeler and Thomas are
celebrating is, of
course, not an altemative to, but a branch
of
legal
studies, that inserts into the world of academic lawyers a review of
values and standards that will aIlow academic legal studies to develop
and change . 1 do in principie share the goals that Wheeler and
Thomas are setting out for socio-legal studies. Yet 1 do not see how an
effective, lasting and fundamental review of values and standards can
be brought about without full theoretical engagement and commitment
to advancing social scientifically aware socio-legal research.
The juri stic approach, as 1 shaIl caIl it here for lack
of
better
concept, distinguishes itself from the more sociologicaIly committed
studies
of
law by giving precedence to the practical insider attitudes,
conceptions and experiences of law and legal institutions at the
expense
of
other forms
of
legal experience or knowledge (such as
7 Sally Wheeler and Phil
Thomas,
Socio-Legal Studies in David J.
Hay ton (ed.)
Law s Future(s)
(Oxford, Hart Publishing, 2002) at 274.
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50 Merging aw and Sociology
those
of
the outside observers or outside participants).8 According to
this internal viewpoint, law is a pragmatic tool, primarily concerned
with providing ad
hoc
and instrumental knowledge which can
contribute to the resolution
of
legal problems.
9
A sociology
of
law,
which
is
developed under the influence
ofthe
juristic paradigm, would
understandably run the risk
of
remaining a theoretically eclectic
instrument of research that
is
an
auxiliary
to legal studies and polity.IO
Furthermore, when the concerns of legal studies develop into a
paradigmatic basis for the sociology of law, the sociological studies
of
law also run the risk of becoming "colonised" by law and legal
studies. Under such "colonisation", the legal community explicitIy or
implicitIy determine which questions are worth investigating and
which answers are relevant. Hence, choosing legal studies as a point
of
reference or
a basis for constructing an academic identity for the
sociology
of
law---eannot be the most fruitful strategy for promoting
the intellectual, disciplinary and academic interests
of
the sociology
of
law.
8 Roger CotterrelI compares the first orientation, which he calIs
"sociology of law", with "contextualism", which requires "particular legal
subjects as
defined by
lawyers to
be studied with a broad awareness of
social consequences and social origins of the law". See Roger CotterrelI,
Law s Community: Legal Theory in Sociological Perspective (Oxford,
Clarendon Press, 1995) at 76.
9 Cf. Max Travers, "Put ting Sociology Back into the Sociology of Law"
in (1993) 20 Journal 01 Law and Society 434-51 at 443, Vilhelm Aubert,
lnledning titl riittssociologi (Stockholm, AWE/GEBERS, 1980) and Julius
Stone,
Law and the Social Sciences: The Second HalfCentury
(University
of
Minneapolis, 1966) at 5.
10
For examples
of
definitions of sociology
of
law as an auxiliary to law
see Brit-Mari Persson-B1egvald (ed.) Contributions to the Sociology 01 Law
(Copenhagen, Munksgaard, 1966) at 2; Vilhelm Aubert, Sociology 01 Law
(London, Penguin, 1969) at 10, Hakan Hydn, "Sociology of Law in
Scandinavia" in (1986)
13
Journal 01 Law and Society at 131-43, and Jorgen
Dalberg-Larsen, "Sociology of Law: A Scandinavian Perspective" in Henrik
Garlik Jensen and Torben Agersnap (eds.)
Crime Law and Justice
in
Greenland (Copenhagen: New Social Science Monographs, 1996) at 27. For
examples from the English socio-legal studies movement see Philip A
Thomas (ed.) Socio-Legal Studies (Aldershot, Dartmouth, 1997).
The
lnside and
Outside 01
aw 5
According to John
F.
Manzo who approaches the sociology
of
law
from the standpoint of ethnomethodology, which is a rather neglected
perspective within the sociology
of
law, the juristic perspective
dominates the field. Manzo argues that "whether we speak
of
positivist, realist, critical, feminist, or other perspectives, current
sociolegal research is consistentIy defined by principIes that are
contained in the law, and the ideology surrounding legal practice".ll
The sociology of law, he then adds, is "informed by priorities that
exclude and preclude the study
of
legal actors' activities
in
their own
terms, without reference to larger sociological questions and without
prioritising legal standards
of
conduct",12
t
could be argued, of
course, that Manzo exaggerates the dominance of the juristic
perspective and there
is
an increasing awareness and interest in the
agency. However, a brief look at recent publications within the field
leaves little doubt as to the continued prevalence of the juristic
paradigm. An increasing number
of
socio-legal scholars might very
well be aware
of
the need to describe how the law
is
understood,
experienced, used, and reproduced by ordinary citizens and in the
course their everyday activities, but this awareness does not translate
into the general direction adopted by the bulk
of
socio-legal research.
No matter how we view the field, the number
of
actor-based
examinations
of
law and legal phenomena, which give priority to, and
depart from,
an everyday perspective
of
ordinary people on law, are
considerably smaller than macro or structural studies. This neglect of
the actors' perspective, understanding, and experience
of
legal
phenomena Le. the bottom-up perspective), in favour
of
stressing a
macro or structural understanding
of
the law and the legal system, a
tendency inherent
in
the juristic approach, clearly causes a theoretical
John F. Manzo, "Ethnomethodology, Conversation Analysis, and the
Sociology of Law" in Max Travers and John F. Manzo (eds.) Law in Action
(Aldershot, Ashgate, 1997) at
4.
12 Manzo, ibid., at 5.
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Merging Law and Sociology
imbalance within the sociology
of
law which
is
detrimental to its
development as a social scientific tradition.
13
The sociological studies
of
law-which
are methodologically and
theoretically informed and structured by various schools within
mainstream sociology---can also be criticised for their various
shortcomings. Sorne
of
these studies tend, for example, to confine
themselves to the social consequences
of
legal action and regulation,
while ignoring the internal mechanism
of
the legal system,14 Many
sociologists who endeavour to study the law tend to observe legal
processes and structures from the outside. Although their distance
from the taken-for-granted values, beliefs and patterns
of
practices
within the legal system allows them to raise questions that would not
be raised by legal scholars (who are part
of
the reproduction
of
the
authority
of
the law), it nonetheless limits their perspective in one
important respect. By the virtue
of
their position, they tend to focus on
law's interaction with its societal milieu.
15
This also implies that the
sociologist loses sight of law's view from within, .e. the
understanding
of
the law in terms
of
the legal experiences
of
those
engaged in law's processes and how the legal system operates
internally. This is not to say that the sociologist cannot access legal
reasoning or the lawyer's understanding
of
the law, or grasp the
internal operations
of
the legal system, but only serves to emphasise
that he/she cannot do that by observing legal behaviour, processes and
13 Among the factors which cause and sustain this imbalance are the
macro character
of
the legal system and what Sarat and Silbey described as
the puB of the policy audience . See Austin Sarat and Susan Silbey, The
PuB
ofthe
Policy Audien ce in (1988) 10 Law and Policy 98-166.
14 Cf. A. Bancaud, Sociologen och ratten eller Frestelsen att skanda in
(1987) 4
Tidskriji jOr
rdttssoci gi
119-34.
15 There are, of course, sociologists who have successfuBy transcended
the limitations
of
the outsider's perspective.
For
a classical example see
Doreen
McBamet's
study
of
the operation
of
criminal courts. Such exceptions
demonstrate that the sociological limits in this regard are not those
of
sociology, but a function of the role adopted by sorne sociologists of law.
Doreen 1 McBamet, Conviction: Law the State and the Construction
1
Justice (London, MacmiBan, 1981).
The
Inside and Outside ofLaw 53
structures exclusively from the outside. Thus, it
is
understood that the
sociologist who studies law from the outside (and a large number
of
sociological studies
of
law belong to this category) is expected to t y
to avoid making comments on matters defined by lawyers as technical
legal issues, which are only visible to initiated insiders.
One important point
is
worth re-emphasising here. As 1 pointed out
in the introduction the notions
of
the inside and outside
of
law are
to be regarded as ideal typical concepts capturing two extreme
positions which are otherwise better described as experience-near
and experience-distant
in
relation to the law and its institutions.
While the former distinction indicates two extreme positions the latter
indicates the degree
of
involvement with (or in) law's practices and
institutions. What we need to keep
in
mind
is
that there
is
nothing
pennanentIy set or irnmutable about the form, boundaries or content
of
the law. Law and all its manifestations are constantIy in a state
of
flux. Thus, the application
of
the inside/outside
of
law is used here not
to describe how the law is
de
facto constructed, but to forcefully
demonstrate the dilemma
of
sociological studies
of
the law.
2 Examples
Let us expand and c1ariry this point using three examples
of
sociological studies
of
law from the outside. The first example
concerns a sociological examination
of
how law is affected by
information technology. The second example
is
part
of
Donald
Black's sociological theory
of
law. These two examples are chosen
because they represent empirically grounded and sociologically
informed socio-legal research and theorising. Finally, the third
example presents a part
of
feminist studies concerning the status
of
women within the legal profession.
The impact of
IT
on legal practice
During 1995, in a study
of
the impact of information technology on
legal practice
in
the U.K., David S Wall and Jennifer Johnstone sent
out questionnaires to each
of
the 1,273 lawyers who practised
in