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The Sociology of Law as a sub-discipline of sociology

Pierre Guibentif

Abstract The division of sociology into different sub-disciplines plays an important role in the discipline's development, and the establishment of a particular sub-discipline has strategic and cognitive implicatums for those engaged in the research of the particular topic in question, as well as for sociology in general. This is why the choice ofactively contributing to such a field deserves to be thoroughly discussed. The present paper tackles the case of sociology of law, a sub-discipline whose position between jurisprudence and social sciences has always been rather uncomfortable, but whose relevance is hardly questionable at a time of rapid change in the contents, modes of dssemination and implementation of social norms.

Introduction Those who are studying the contemporary practice of law have for many years had to deal with severallabels. If there is a name for what they do, should it be 'sociology of law' (Ferreira and Pedroso 2000), 'socio-legal studies', 'sociological analysis of the law' (Arnaud and Farias Dulce 1998: 4ff) evoking a sort of research practiee; 'critieal legal studes' - evoking a link between this research practice and a political co~mtment; or else 'law and society', 'law in society' (Santos, 1986), 'law in action', 1aw in context' evoking a topie?

The evolution of attitudes towards these labels dates from a time when the phrase 'sociology of law' was widely accepted by specialists, up to a time when there are more labels avalable, while the acceptance of the label 'sociology of law' declines (Amaud and Farias Dulce 1998: 3). 1 have felt sorne dscomfort towards ths evolution. This feeling became acute when 1 was appointed to head the Intematonal Insttute for the Sociology o Law. If you are in charge of an institution, then you had better take ts name seriously - be it by defending the current name or by advocating a change of it. 1chose the former.

Label issues should not rate at the top of our agenda. Priority is to be given to substantive questions. However, by dentfying a practice, a social group, or a topie, labels have an mpact on our self-understanding, partcularly when it comes to sharng ths understanding with other people; and such shared understanding is a prerequisite for efficient academie cooperation. This is why 1 have had to tackle the question: why do 1 prefer the label 'sociology of law' for the field 1am working in?l

There are two sets o answers to ths question: (1) 1consider that it is worth linking socio-legal research to the notion of sociology, which carries a specific kind o research ethics, substantively defined by the hstory of the discipline; (2) 1 consider that sociology benefits from the exstence - within its internal structures - of a sub-field that is defined by the noton o law.

PJSS 1 (3)175--184 IntelIect Ltd 2003 175

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I Keywords sociology of law; sub-disciplines (in

sociology); social link (lien socia!); reflexivity; differentiation (of law); theoryand methods

(links between)

This is an updated version of a paper presented to the Oxford Centre for Socio-LegalStudies' Workshop on Social and Legal Theory, he1d on 4 December 1999. The paper drawson the author's professional experience in the sociology of law at IScrE's Department of Sociology and at the Intemational Institute for the Sociology of Law, Oati. It gives written expression to thoughts that the author has had opportunity to submit for critical discussion on various occasions, in particular at the conferences on Law and Society that he has been invited to attend at Lisbon's Centre ror Judicial Studies, c1asses given within the framework of the

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II -Oati Intemational Why there should be 'sociology' o law

Masters' Prograrnme If we take research on socio-Iegal phenomena as being a work of the sociology in the Sociology of Law during 19992000, on 'Law in World Society: States and Communities', and in a paper entitIed 'Frente a los nuevos problemas de normatividad social: cual s el papel de la sociologa del derecho?', which was delivered, by the kind invitation of Pompeu Casanovas, at the Univcrsitat Oberta de Catalunya during November 1998.

2 On this position, see the critiques of Ziegert (1994). For a comment on these two ways of understanding sociology of Iaw, as belonging to sociology, or else to law, see also Serverin (2000).

3 For a continental example, see the methodological contribution made by authors such as Yves Dezalay (1989) and Alain Bancaud (1989), which is related to their involvement in Pierre Bourdieu's network.

4 A weIl-known continental example is the theoretical contribution made by NikIas Luhmann, aimed at producing a general concept of social systems to be applied to various social fields, such as law, economics, science, arts, etc.

(

-of law, this means that this work belongs to sociology as a broader academic field; that the research is somehow connected with other sociological research (Nelken 1998: 415). Let us note here that history has made the phrase 'sociology of law' more ambiguous than its literal meaning suggests. Indeed, there are authors who understand it not as belonging to sociology, but to law as an academic discipline (e.g. Raiser 1994; 1996). In this sense, it is conceived as one chapter among others in general introductory courses in legal studies.2 I will not consider this second sense here, as it corresponds to institutional settings in which it is difficult to take full advantage o a genuine sociological identity.

More concretely, when labelled as 'sociological', socio-legal research is more likely to be known - and criticized - by sociologists; to feel obliged to take the methodological concerns of sociologists into account (Guibentif 2(02), as well as debates of major interest among sociologists; and to be accepted in institutional settings identified with sociology (departments, associations, journals, etc.). It makes it easier - and also obliges us - to relate our results to the wide picture of social reality that is produced by sociology in general, and to relate our research experience on legal phenomena with the experiences of those researching other social fields. One may - indeed is obliged to - compare them.

Here are three examples of topics deserving such a comparative reasoning. (l) Sociology of law teaches us that legal rules in the books are seldom taken into account in concrete social interaction. As a matter of fact, something similar happens to most written guidelines aiming at structuring complex organizations. (2) Legislation is is~ed in official newspapers; legal scholarship is published in books and journals. So when it comes to the study o its reception, it would be appropriate to consider similarities and differences with other cultural contents carried by written media. (3) 50ciologists of law ofien encounter problems with those they are surveying (e.g. lawyers, judges, etc.). Sociologists of health systems have similar problems in dealing with doctors.

The benefits of a direct comparison between socio-Iegal research and other sociological research are obvious: they foster methodological strength,3 and enrich the conceptual framework.4 Nevertheless, this comparison is regarded suspiciously by sorne authors (e.g. Arnaud 1998: 79). One of their concerns is that it couId hinder the due consideration of the specificities of the object law. I cannot share this concern: the establishment of a sub-discipline 'sociology of law' should be a sufficient warrant for the development of theoretical and methodological tools adapted to these specificities. I will come back to this point in the second part of this papero

By identifying our work as being sociological, we join the field of sociology - cooperating with other sociologists. Thereby we may also accept what could be called the original aims of the discipline, thus bringing into this cooperation substantive motives which justify why we cooperate in the first place with sociologists, instead of with econornists, anthropologists, political scientists, etc.

Here we should introduce one word of warning in order to avoid misunderstandings. To elaborate on the reasons for a narrow cooperation with sociologists does not mean that cooperation with other social scientists is not

176 Pierre Guibentif

on the agenda or that socio-legal research should be carried out exclusively by sociologists. It simply takes into account the fact that training and research in social sciences is, to a large extent, organized on a disciplinary basis. Given this organizational structure, one possible strategy for developing strong concrete links of cooperation with social scientists in general is to integrate into one of the disciplinary fields in particular, and to use this position within the broader field of social science to establish links with other disciplines.5

There is another remark worth inserting here. 1 shall admit that there are historical reasons for the existence of specific disciplines, which remain the implicit motives for their institutional framing (e.g. university departments, academic degrees, associations, etc.). Most of the time, however, these reasons do not need to be made explicit, because the institutional framework is strong enough to make an actual discussion of the raison d'etre of one particular discipline - e.g. sociology - unnecessary. So the discussion below does not pretend to give an account of what is the actual explicit self-understanding of sociology,6 but of a possible self-understanding, which could be shared by many of the participants in a hypothetical broader debate on what they aH have in common.

One of the original aims central to sociology is to investigate the question 'how is society possible?'7 This means that the vocation of sociological research on a specific issue is to relate the insights obtained on this issue to the discussion of wider mechanisms of social integration. Classics of the discipline studied these mechanisms of integration at the level of 'societies', using

.. concepts such as 'social representation', 'legitimacy of power', and 'society' as opposed to 'communiti, etc. In current sociological debate, there has been a shift away from this emphasis on 'society'. We frequently use the word - as sociologists are expected to do - but we have to idmit that the concept lacks substance8 - or has lost it (Trubek 1990: 31) - and that its relevance has become questionable (Wallerstein 1995). Where there is sorne evidence available, it suggests that the social universes of people varies among social categories to such an extent that it is hardly possible to identify a common pattern that would deserve the name 'society'.9 Significantly, one of the most pressing issues sociologists are now called on to deal with is 'social exclusion'. This draws the attention of the public on the outside of society, deviating it from this other crucial question: what does the inside of society consist of (Guibentif 2001a)?

So we would probably have to withdraw from the main classical question to a more radical one: 'Is there any society?' This is somehow the sense of the emphasis recently given to the notion of 'social link' (lien social). Now that it seemingly has become more difficult to identify mechanisms of social cohesion at the macro-leve!, we take as a central concept one that addresses social cohesion at the micro-Ievel (Le. individual relations). Within this context, our main question would now be: 'How are sociallinks possible?'

If this is the main sociological question, then taking the name 'sociology of law' seriously implies observing the practice of law with a particular view on the possible contribution of this practice to the establishment and maintenance of social links. On the one hand, this programme goes beyond sorne of the 'classical questions' within the discipline of 'sociology of law. In particular questions such as: 'To what extent is law effective?' (Carbonnier 1957-58), or

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5 For the cooperation

between economists and sociologists, see Kirat and Severin (2000). For an empha- I sis on the role of anthropologists in such interdisciplinary undertaking, see Supiot (2002).

6 To qualify it as 'multi-perspectival' (Travers 1993: 439) seems quite accurate.

7 This is the title of an important amele of Georg Simmel. Significantly, two of the most important participants in the recent sociological debate proposed an in-depth discussion ofthis paper (Habermas 1984: 30ff; Luhmann 1975: 194ff).

8 For example, see the entry for 'society' in Abercrombie ct al. (1988).

9 For sorne examples, see the in-depth interviews carried out in Lisbon within the framework of a research project on attitudes towards the media and towards crime (Guibentif et al. 2002).

10 In more recent papers, Blankenburg (1995) has worked on an approach to law through the concept of Mobilisierung des Rechts. Taking actors and their expectations towards their social environment into accOlmt, this approach fits the sociological aim discussed here.

11 See for example Sarat (1998) who refers to the necessary contribution of 'law and society' to 'public culture'.

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'How can law be implemented?' (Blankenburg 1986)10 - both questions that are strongly conditioned by the institutional praximity that existed over the years between sociology of law and governmental agencies responsible for the implementation of the law. On the other hand, this pragramme is more specific Ithan a general discussion about the origins and effects of law. It also may help us avoid getting trapped by a simplistic understanding of themes like 'Law and 50ciety', or 'Law in 50ciety'. What is at stake is not only to analyse the relations between two realms of reality - 'Iaw', 'society' - both supposed to be consistent, but also to evaluate their consistency.

Another of sociology's original aims is to be 'refiexive', in the sense that it should be an instance where 'society thinks for itself'. This becomes most explicit in Jaff, 50mbart and Weber's preface to the journal Archiv fr Sozia/wissenschaft und Sozialpolitik, the goal of which was to interpret modern times, rather than merely survey social statistics and legislation as previous publications hado This aim also is implicit in the connection that Durkheim made between sociology and pedagogy (Durkheim 1903). In more general terms, it is one of the most plausible reasons for creating, at the end of the nineteenth century, a new and overarching discipline that observed society. Pre-existing disciplines - such as economics, history, geography and anthropology - had developed due to the demands of state agencies and to support governmental practice. 50ciology not only intended to provide a global picture of society, but it also sought to make this picture available to society itself - an entity that was presumed to be in need of cognitive support. From this point of view, it is significant to see Durkheim prioritizing the discussion of 'social representation', and, later, Mannheim advocating the development of Wissenssozi%gie (Mannheim 1931). This could also be the reason for sociology being fas~onable during the late 1960s, a period of intense public debate on the self-understanding of society, and on the relationship between state and society (Garth and 5terling 1998: 412).

This second original aim may strengthen the 'emancipatory' vocation of much of socio-legal work - notably work that is identified with the label 'critical legal studies'. 5uch work should make knowledge on legal reality available beyond the borders of the legal system, thereby fostering possible alternative uses of the law. Even while it has been mentioned recently by several authors,l1 it is an aim worth remembering at a time during whieh the results of research projeets often become the property of those entities that financed the research (Perrin, 1997: 20); and when the fees for attending meetings on social issues make non-specialist participation unlikely.

Why should there be socology 'of law'? The existence of the sub-discipline 'sociology of law' may also be assessed fram the sociologists' viewpoint. Are there good reasons for the recognition of a sub-field that is defined by the topie 'Iaw'? As a matter of faet, sub-fields were once recognized as soon as a sufficient number of sociologists dedared their will for them to be recognized as sub-disciplines. This is what happened in the early 1960s within the Internatlonal 50ciologieal Association with the creation of the Research Committee on 50ciology of Law (1I5L 1991). Thus, 'sociology of law' is now fairly well established on an international or global level (1I5L 2000). On a locallevel however, or within the framework of smaller

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associations, the need for a substantive justification of the establishment of a sub-discipline may be more pressing.12 This is particularly true for the sociology of law, which is often neglected in standard catalogues of sociology sub-disciplines that can be found at the national level (see, for example, Berthelot 2000), despite the amount of work done (Travers 1993: 442).

One good organizational and strategic reason for the development of the sociology of law sub-discipline is that it is likely to establish bridges between sociologists and legal' professionals. Indeed, it shows a clear commitment towards a sociological approach to the topic, thereby recognizing the importance of a social field that consists of the legal professions and institutions, a recognition which is likely to favour the debate with those professions and institutions.13 It is worth mentioning here, however, that it was precisely the rejection of this attitude that was behind many sociologists' hostility towards this sub-discipline: by definition, it gave excessive weight to what they considered a mere superstructural artefact (Ferrari 1998: 11).

Beyond the syrnbolic recognition of a social field, the differentiation of sociology of law may also help to maintain the organizational relations that are necessary for the conduct of socio-legal research, Such research requires easy access to both the people and the institutions involved in the practice of law, Le. to know the people, their habits, and their languages, etc. In other words, what may be termed the 'legal culture' is not only one chapter of many in sociology of law handbooks - a thorough knowledge of it is also a prerequisite of much of the research in many fields of law in action.

The maintenance of such a narrow relationship to legal culture is probably one reason for the development of atypical groupings (from the social science viewpoint), particularly those that use the label 'law and society'. There are sorne risks in the constitution of such grouping\ such as the difficulties in generating adequate distance towards their subject. Moreover, their existence may even suggest that the empirical approach to legal phenomena is something that working outside the sociological discipline should be entrusted with. To establish sociology of law in the fieId of sociology is precisely to react against such an implicit statement: it means that law should not be considered as an area which access would be restricted to jurists.

On the other hand, where there is one grouping labelled 'sociology of law' and another labelled 'law and society', their coexistence and cooperation may establish a sophisticated scholarly bridging device, one that can produce a critical refiection on the law which remains anchored solidly within the social science realm, and that sets a clearly identifiable meeting-point for the diverse streams of academic refiection on the law (criminology, political science, poltical philosophy, etc.).

In other words, I consider the establishment of the sociology of law subdiscipline as an acceptable way of integrating the observation of law in action within sociology, without ignoring the special methodological and organizational needs of research and debate in this field. It is an acceptable way to simultaneously recognize the particular needs of sociology's special clients - the legal institutions and professions, academics working on legal phenomena - whilst avoiding any restriction in access to any evidence gathered in this material, as far as other - possibly more diffuse - clients of sociology are eoneerned. This actually eorresponds to the aims of sociology as

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12 One example of this is the difficulty encountered in main

, taining sociology of 1aw as a discipline of I the sociology degree at rscrB.

13 This is a concept that is particularly defended by Commaille and Perrin (1985).

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expressed by Alberto Martinelli, as president of the ISA, who believes that sociology should be better recognized in the professional training of judges, lawyers, civil servants, as well as in their activities within intemational organizations and government agencies (Martinelli 1998: 2). I

The reference to the relationship between sociologists and legal practitioners leads us to another possible contribution that the sociology of law can make to other branches of sociology. This relationship is not an easy one. Indeed, legal practitioners are in a comparatively strong position to question the relevance of the knowledge on legal practice that i~ produced by sociologists. They can do this by stating that they know the field they are working within best (Cotterre111998: 177), or by arguing that law is the oldest social science, one that was designed to observe social settings long before the birth of modern academic sociology (Nelken 1998: 419). 1consider this type of challenge as healthy. It obliges us to reassess the legitimacy of our cognitive efforts. In my opinion, the response to this questioning of sociology's worth is that this discipline does not aim to substitute people's own understanding of the situations within which they are operating, but rather, to offer an additional and complementary view. What justifies sociology is that this additional view is likely to provide people with a richer vision of their reality, thereby giving them additional cognitive instruments with which they may determine their actions. This is an argument that could be used in the discussions between sociologists and social groups other than the legal professions. As a matter of fact, many of the categories that are being surveyed by sociologists (e.g. families, young people, etc., or, in extreme cases, the poor, deviants, inmates, etc.) are hardly in a condition to open such a discussion. So there is a risk for sociology of neglecting the question of how to combine in an ethical1y correct way sociologica~ndsocial actors' interpretations. 1 consider the kind of 'cognitive negotiation' that occasional1y takes place between jurists and sociologists, precisely because jurists are challenging partners in the discussion, as an excellent exercise and an opportunity to shape our sociologists' ethics in the relationships with the people we survey.

There is also a substantive reason for the development of the sociology of law as a sub-discipline of sociology. It is widely accepted among contemporary sociologists (including Bourdieu, Giddens, and Luhmann), that society is nowadays strongly structured by the existence of 'differentiated/disembedded' 'fields/systems/activities' that cross over social stratification and give rise to the fragmented involvement of individuals who are simultaneously committed to sharply differentiated, and often incompatible roles (e.g. as family members, citizens, workers, consumers, shareholders, students, etc.). These are situations that challenge many of our main concepts: like 'society' or 'social actor'. What we now need are better assessments of the plausibility of this statement, assessments that are based in concrete evidence. Law appears to be an adequate subject to be surveyed with the view to gathering such evidence (Guibentif 2001b). On the one hand, law obviously plays a role in the differentiation of the disembedded fields, while, on the other, it operates at the level o actual practice, and can be empirically observed.

There is one more motive to include the ref1ection on the law in the epistemological agenda of sociologists, at least in continental (or Latin?)

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sociology. For historical reasons, sorne of sociology's basic concepts are 14 In the opposite direc strongly marked by legal categories. One example of this is the concept of tion, sociology 'social representations'. This concept was shaped by Durkheim in his attempt slrongly inf1uenced

corporatist concepts to recognize society as a specific reality, to be identified beyond the admittedly of the law. See, for Iless consistent reality of the nation as framed by the states and public example, Duguit or

institutions. It is arguable that, within the framework of this cognitive strategy, the young Gurvitch Durkheim was conditioned by an implicit parallel between social representations (structuring society) and law (structuring the nation). This led him to adopt an over-positivistic concept of 'social representations', which was mainly defined by contents. This concept of social representation is still effective today, and is reinforced by the use of questionnaires as a survey instrumento The answers given by survey respondents define the 'current contents' of social representations. The refiection on the development of sociology as an academic discipline, and as a neighbour of legal science, draws attention to this - mutuaP4 - conditioning of early sociology and the legal scholarship of the late nineteenth and early twentieth centuries. The refiection on the positivation of law process, on normative pluralism, and on the way of grasping prepositive legal experiences may help us to deconstruct the concept of social representation - shifting it from a 'subjective/substantive' concept to a 'communicative/procedural' one (Habermas 1981, vol. 1: 523).

Finally, we should also mention two of the many problems that are faced by contemporary sociology; problems that the sociology of law will have to deal with as well. The first of these is that sociology is not a very fashionable discipline nowadays. If an attractive way of discussing legal issues exists today, it is possible that it would be within the area of political theory - not of the sociology of law. Fashion is not a sufficient reason for strategic disciplinary choices, however. A more serious threat is theJncreased pressure that is exerted upon universities to deal with issues to the detriment of disciplinary approaches. Examples of such issues are 'social exclusion' or, more important for the sociology of law, 'public policies'. This pressure is largely caused by politicians' anxiety regarding new trends in social development, which is, in turn, a result of the pressure they feel to provide responses to these new trends. In the face of this pressure, the question is whether the disciplinary identities effectively add value to the analysis of these trends, shaping views that are likely to contribute to the enlightenment of the actors involved. If this is the case - as part of the discussion above would lead me to admit - it is up to the academic disciplines to work for their own preservation and development, and to ensure the establishment of an adequate balance between public pressure (social sensitiveness), and the need to continue developing more sophisticated cognitive instruments (theory). However, this will probably be easier to do on the basis of a clear identity that is shared by a large community - the sociologists in general and not only the sociologists of the law.

Another problem - internal to the discipline - is that contemporary sociology is now faced by a new situation. Ambitious theories that have been shaped within the framework of academic sociology, and which may have reached a high level of accuracy (e.g. Beck, Bourdieu, Giddens, Luhmann, Teubner, Touraine, etc.) are now available. Given the complementarity that may exist between these theoretical solutions, they are probably more accurate when taken as a whole rather than individual1y. This could be called the 'Tbird

The sociology of law as a sub-discipline of sociology 181

(L'ide du droit social, 1940). Regarding the case of Portugal, let us be reminded of the inf1uence of Durkheim's sociology on corporatist legal theory.

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15 5ee, in particular, the Age' of contemporary socioIogy: fo11owing a period during which the debates triggered by emphasis was placed on the accumulation of data, then a period during which

-the worksof attempts were made to produce theories that were likely to fit this data. The Luhmannand

challenge now is to effectively reconnect theory with empirical observation Teubner. See also (Travers 1993: 440). Within sociology of Iaw we have the opportunity toBlankenburg (1994) and Guibentif appreciate just how difficult this is. IS However, the problem has wider (200lb). implications, and by trying to deal with it we had better take the experiences

of other fieIds into account.

Final cornrnent This discussion advocates a clearly defined and delimited sub-discipline: 'sociology of law'. However, 1 do not argue that people shouId identify themselves as belonging exclusively to this discipline. Let us remain functionally differentiated. What is at stake is an attempt to provide us with clear guidelines in specific activities. As long as the disciplines are identifying specific activities, and not peopIe, the risk of them becoming 'prisons of understanding' will be moderate (Cotterre111998: 177). We a11 may, either by choice or lack of it, switch from one to other activities - the more the better. Switching between areas, however (legal professions, academic disciplines, administrative responsibilities, etc.), can be expected to be productive only if at any moment of time we know precisely what we do, in order to do it better, and to take greater advantage of the experience obtained in the other fieIds. This is what a clear disciplinary identity for practice, not for people - can provide us with.

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