law, sociology of
Although Karl Marx did not write a systematic treatise on law, he nevertheless had much to say about it (see M. Cain and and A. Hunt , Marx and Engels on Law. 1979
), including two points which were particularly influential in subsequent studies. The first was that, because the legal system is part of the bourgeois state, it was an instrument of class oppression. The second was that, because ‘the ruling ideas of a period are the ideas of the ruling class’, even the most basic of legal concepts (most famously ‘rights’) are part of the system of bourgeois domination.
Émile Durkheim likewise did not write a treatise that was specifically devoted to law, although he came closer than Marx in that much of the argument of his The Division of Labour in Society (1893) was devoted to explaining why the legal systems of so-called mechanically solidaristic societies are ‘retributive’, whilst those of organically solidaristic societies should be ‘restitutive’. In addition, his Professional Ethics and Civic Morals (1950) contains a sustained and significant account of the development of contract and property law during the nineteenth century.
Finally, and alone amongst the founding figures, Max Weber did actually write a full-blown treatise on the law. It takes up most of the second volume of his Economy and Society (1922) and is a remarkable tour de force, covering as it does the theory, history, and social role of the law across a wide variety of different societies. Like Durkheim, but on an entirely different basis, Weber took a much more positive view of the law than Marx, in that he regarded it as an integrative force in society. However, his position was not without a certain ambivalence, since he regarded the law as both an important contributor to the general, historical rationalization of Western societies (on which point see also his General Economic History, 1923
), and a critical component in the system of legal-rational domination specific to the most advanced capitalist societies.
Unfortunately, despite the fact that Talcott Parsons periodically returned to the law in the course of his general theorizing, law lost its position as a major focus of macro-sociological work after the death of the discipline's modern founders. Perhaps for this reason, and certainly because of the rise of empiricism and the existence of a high level of official interest in the results of research related to the operation of the legal system, theoretical issues virtually disappeared from the interests of sociologists of law until the 1970s. In their absence there appeared numberless studies of the police, lawyers, judges, and the court and other regulatory systems, plus many purporting to report on the social impact of various laws.
Mercifully, this prolonged bout of usually highly abstracted empiricism appears to be coming to an end. Researchers with theoretical as well as substantive interests in sociological questions about the law have returned to the founders and sought to develop their work so that it can be applied to contemporary societies. Leading examples of such work include Bernard Edelman , The Ownership of the Image: Elements for a Marxist Theory of Law (1979)
; Frank Pearce , The Radical Durkheim (1989)
; and, for the continuation of the Weberian legacy, Roberto Unger , Law in Modern Society (1976)
. There have also been several recent moves to reintegrate theory and empirical work (for an ambitious attempt to do this retrospectively in a textbook format see R. Cotterrell , The Sociology of Law, 1984
). Why this should be happening is a question for the sociology of knowledge, but one obvious reason is the renewed interest in theoretical issues that has marked jurisprudence proper over the same period. Especially in the United States, the established approaches, represented by legal positivism and legal realism, have been challenged by the neo-liberal Law and Economics School (see R. Bowles , Law and Economy, 1982
), as well as by the much more diffuse Critical Legal Studies Movement. These are challenges that the sociology of law too will have to respond to if it wishes to retain its current vibrancy.
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