NATURE AND SCOPE OF SOCIOLOGY OF LAW

The classics of sociology have provided the applied discipline with various tools, yet
the role of the sociology pioneers in constructing ‘sociology of law’ is [Link]
example, Marx’ thoughts were very influential in sociology of law though he all but
ignored the study of law. Besides, the specialization of subfifields withinsociology is
a development that is distinct to modern sociology.

It may have been in part because of the not always clearly demarcated treatment of
law in classical thought that modern sociology has only gradually been able to claim a
distinct interest in the study of law. More importantly, however, the development of
the sociology of law as a disciplinary specialty was slowed down by the
monopolization of the study of law in legal scholarship and the development,
independent from sociology, of legal thought as it evolved in the profession. To this
very day, it remains somewhat of a struggle to have the sociology of law accepted as a
distinct and valid enterprise by legal scholars and other legal professionals.
Emblematic of this misunderstanding is the curtailment of law as the whole of legal
norms and the systematic study thereof for purposes of consistency and,
correspondingly, an inability to acknowledge law as a social issue that must be
sociologically explored. It is an ironic but consequential reality of the sociological
study of law that it has been hampered in its development by the stubborn resistance
of forces coming from within its subject matter.

The development of sociological thought, on the one hand, and the monopolization of
legal thought by the legal profession, on the other, form the essential forces that can
analytically be used to frame the maturation of the sociology of law as an
institutionalized specialty. In light of some of the difficulties the institutionalization of
the sociology of law faced during the second half of the twentieth century, it is
remarkable that in the years prior to and shortly after World War II the prospects of
the sociology of law were much better.

The first half of the twentieth century was, in fact, a productive period in the
development of the sociology of law. Specifically noteworthy are the writings of
several sociologically minded legal scholars and sociologists of law, specifically Leon
Petrazycki and the scholars that emanated from his teachings, Nicholas Timasheff,
Georges Gurvitch, and Pitirim Sorokin, as well as other European scholars, such as
Eugen Ehrlich and Theodor Geiger. The scholarly and sociological orientation to law
in the works of these scholars, provides an important intellectual bridge between
classical and modern sociology of law.

Among the European precursors to the modern sociology of law, the legal scholar
Leon Petrazycki (1867–1931) stands out for the scientific ambitions and systematic
nature of his thought as well as the foundational inflfluence of his work on a number
of later scholars in the sociology of law.
Petrazycki was like no other European scholar of the time engaged in the
systematization of a scientific, more specifically a psychologicalrealistic, theory of
law. Petrazycki would thereby also contribute, especially via the works of some of his
students, to the development of a more distinctly sociological tradition. In terms of the
development towards an independent sociology of law in Europe, the work of
Petrazycki takes center stage, not because of its psychological orientation, but because
it presented a resolutely
scientific treatment of law as a necessary step towards the sociological study of law as
an activity with academic rather than practical ambitions. Though psychologistic,
Petrazycki’s theory turns attention away from an abstract understanding of legal
norms and, additionally,brings out the relevance of the active motivation and
orientation towards the law that must exist on the part of legal subjects for law
to be valid.

A result of his early teaching at the University of St. Petersburg, where a so-called
“Petrazycki school” was formed, that consisted of, most notably, Nicholas Timasheff,
Georges Gurvitch, and Pitirim Sorokin. What is peculiar about this movement
towards the sociology of law is both the explicit attention Petrazycki’s students paid
to law and, at the same time, the manner in which they moved toward a more
distinctly sociological treatment, away from Petrazycki’s psychological theory. This
movement to sociology, however, came at a price, as it also entailed, particularly in
the work of Sorokin, a move away from the study of law or, at least, from a
systematic effort to develop a sociology of law. Additionally, the Petrazycki school
dissipated in both a geographical and an institutional sense and lacked the cohesion
necessary to build a lasting tradition.

Like his mentor at the University of St. Petersburg, Timasheff was primarily
interested in developing a realistic theory of law, one, however, that would be
distinctly concerned with the social dimensions of law. Timasheff defined the
sociology of law, in relation to jurisprudence as the study of legal norms, as the study
of human behavior in society in as much as it is influenced by legal norms and, in
turn, influences those legal norms.

Sociology of law is nomographically oriented at discovering the laws of causality

concerning the dual relation between norms and normative behavior, while
jurisprudence is an ideographic science oriented at the logical interdependence of
legal norms. Sociology and jurisprudence are thus complementary but separate
disciplines. The primary function and observable consequence of law, according to
Timasheff, is to secure equilibrium by the production of uniform and conforming
social behavior in order to achieve peace, security, and organization in society.

Like Timasheff, Gurvitch adopted principles of Petrazycki’s basic notion of law

transposed from the level of individual psychology to the level of a sociology of
society. Most essentially, Gurvitch develops a dialectical perspective on law that leads
to a complex classifification of various types of law depending on various levels of
social reality and corresponding types of sociological analysis. Gurvitch defines law
in objectivist terms as the whole of legal norms that are factually embodied in a
particular social context. Sociology of law is defined as the study of the full social
reality of law, including the symbols of law as they are embodied in rules, the values
associated with law, and the collective beliefs and intuitions that relate to these
values.

Pitirim Sorokin (1889–1970) is the third important member of the Petrazycki group
whose work deserves discussion. Sorokin graduated under Petrazycki in the area of
criminal law. He would become most influential as a central player in the
institutionalization of modern sociology in the United States. In 1919, Sorokin
founded the first sociology department at the University of St. Petersburg. Petrazycki
and the members of the school named after him were not the only scholars of
European descent to aid in the establishment of the sociology of law in the years
before World War II. Other European scholars in the areas of legal philosophy, legal
science, and legal sociology were likewise engaged in intellectual efforts that were
historically and/or theoretically helpful towards the development of a sociological
study of [Link] work of two German-language scholars, Eugen Ehrlich and Theodor
Geiger, because the themes in their respective writings show striking similarities with
some of the insights from the Eastern-European precursors.

Geiger initially conceived of his approach as a formal sociology of law that was
aimed at studying law in relation to social order and social structure. Yet, he later also
developed a substantive sociology of law that focuses on the content of legal norms
and the internal structure of law. In some European traditions, particularly in the
work of Geiger, the sociology of law was still primarily understood as an effort to
meet the practical ambitions of jurisprudence to provide for better law.

Geiger’s main contributions are methodological, rather than theoretical, in urging for
systematic studies of law that abide by rigorous standards of data collection and
analysis. A theoretically more informed understanding of the sociology of law was
offered by Ehrlich, who differentiates between a legal science with practical
ambitions and a body of thought on law, such as the sociology of law, that has purely
academic aspirations. Nonetheless, Ehrlich posits a relationship between these two
conceptions of legal thought by suggesting that the “juristic science of the future”
would consist of a sociologically informed study of law that does not engage in mere
abstract thinking on the basis of the principles of legal statutes, but that relies on a
free finding of all law in society, whether it is recognized by statute or not. As such,
Ehrlich hoped that the sociology of law would ultimately inform existing legal science
to build a new order of “sociological legal science.”

The development of the sociology of law in Europe primarily entailed a

transformation of the appropriate analysis of law from the psychological to the social
level and a specification of law as a social institution and practice. But several of the
early European scholars still held on to the notion that sociological analyses could and
should play a role in bringing about a greater sense of morality and justice in law. In
order for there to be an institutionalized sociology of law as a field of academic
inquiry, however, the sociological study of law would have to escape from the bounds
of legal thought. Because of the stubborn resistance from the more developed
tradition of jurisprudential thought however, it would take considerable time before
the maturation of an independent sociology of law would be realized. In fact, the
development of a sociology of law in the United States faced even more
complications than in Europe. The differential development of the sociology of law
on both sides of the Atlantic relates intimately to the structure and objectives of legal
education and the implications thereof for the study of law from legal as well as
sociological viewpoints.

The development of the sociology of law cannot be restricted to the history of

sociology but must also consider elements in the history of legal thought, especially
those emanations from legal scholarship claiming to be sociologically informed. This
condition particularly applies to the United States, for when the first attempts were
made in European sociology to carve out a niche for the sociology of law, there was at
the time no such similar development in American sociology, where studies of law
were conducted only very rarely in sociological scholarship. Instead, as an early
precursor to the sociology of law there developed a perspective known as sociological
jurisprudence. Established by Harvard law professor Roscoe Pound, sociological
jurisprudence was an extension of the legal thought of the famous US jurist Oliver
Wendell Holmes, Jr., who had formulated a conception of law as reflecting a nation’s
development. Inspired by Holmes and the turn towards a scientifically informed
jurisprudence, sociological jurisprudence additionally paved the way for the school of
legal realism, which benefifited most from its systematization in the work of Karl
Llewellyn.

The American traditions of sociological jurisprudence and legal realism take the place
of the work of Petrazycki in Europe as being among the precursors towards the
sociology of law. However, becausethese early schools in the United States were part
of legal rather than sociological scholarship, an additional effort was needed from
within sociology to establish the subfifield of the sociology of law. In this
respect, American sociology was fortunate in being able to count on the work of the
Harvard sociologist Talcott Parsons as the crowning moment of the modern sociology
of law. Parsons developed a perspective on law that was sociological both by being
informed by his systems-theoretical perspective and by being in line with the great
traditions of classical sociology, which Parsons, more than anyone else, helped to
make a central aspect of the theoretical discourse of modern sociology.

The emphasis in sociological jurisprudence is thus on the actual workings of the law,
not merely on legal doctrine and law-internal theory. Pound phrases this difference in
perspective in the now famous distinction between law in action and law in the books.
Pound argues the differentiation between law in action and law in the books to have
been brought about by a general lag of law relative to social conditions, the failure of
legal thought to take into account advances in the social sciences, the rigidity of
legislation, and defects in the administration of law.

Sociology of law clearly demonstrates that: law is born of socio-political contexts,

themselves existing in different historical eras; that it serves some interests rather than
others; that different societal structures or forms of organization give rise to different
laws and legal systems; and that a combination of coercive and ideological processes
are at work to ensure the continuation of existing legal systems and through these,
existing structures of domination.

The sociology of law also draws sustenance from the fertile soils of anthropology,
jurisprudence, and legal realism. Indeed, the struggle by positive law philosophers to
separate law from other rules such as morals and customs met an early challenge from
those like Ehrlich, Ross, Pound, Llewellyn, Hoebel and Malinowski. In their different
ways these scholars demonstrated that law was a part of, rather than separate from, the
wider phenomenon of social control. For Ehrlich, the root of law was to be found
not in logical and consistent rules, but in the "living law" of the social association that
exercises sanctions more forcibly than law and which dominates life itself. For Ross
the law was just one of as many as 33 forms of social control, while Pound showed us
that without a consideration of the context and application of law, any analysis of it,
or even lawmaking itself was meaningless. But it was the legal realism of those like
Holmes, Frank, Llewellyn, and Hoebel that struck a blow to the heart of the positivist
distinction between law and social context, with their demonstration that the law in
practice was not the same as "law in the books." This fundamental reconception led to
years of research on the "gap" problem of law and its application that is manifest in
numerous studies such as those on police discretion, plea bargaining, and bias in
sentencing.

Nor was the anthropological evidence from those like Malinowski in his famous study
of the Trobriand Islanders, Crime and Custom in Savage Society, any less damaging
to the pure legal formalist position since it showed the range of sanctions and systems
of social control embodied in the customs and psychological fabric of non-industrial
societies. More recent work of anthropologists has moved us from the law-centered
approach of Western societies, where all rules are seen as laws and all peacemakers as
judges, to Moore's notion of "law as process." Here law is seen as part of the social
matrix that provides just one form of dispute settlement among many for restoring
breached social relations.

There are two general approaches to the study of law. One approach we may call
jurisprudence (or, alternatively, legal science, sociological jurisprudence or legal
dogmatics). The second approach is the sociology of law. Members of the legal
profession are most often concerned with jurisprudence. Social scientists, on the other
hand, are more likely to identify with sociology of law. For the sake of clarifying
domains of inquiry (that which is the focal point of inquiry), let us provide a working
definition of Sociology of Law.

Sociology of Law is the study of:

(1) the evolution, stabilization, function, and justification of forms of social control;
(2) the forms of legal thought and reasoning as they relate to a particular political
economic order;
(3) the legitimation principles and the effects that evolve with them;
(4) the "causes" of the development of the form of social control and staff of
specialists that are its promoters;
(5) the transmission of "correct" methods of legal reasoning;
(6) the creation of the juridic subject with formal, abstract and universal rights; the
evolution of the juridico-linguistic coordinate system (legal discourse) in use and its
nexus with the political economic sphere; and
(8) the degree of freedom and coercion existing in the form of law.

The emphasis is on specifying the causes of law, legitimation principles, the specific
legal discourse and forms of legal reasoning that arise, the development of a
specialized staff to use it, the evolution of the so-called juridic subject (the"reasonable
man" in law), and the degree of coercion and freedom that exist in law. Finally, this
approach examines the connection (nexus) between the form of law and the political
and economic sphere.