Abel, Richard L., Law as Lag Inertia as a Social Theory of Law, 1982

8/12/2019 Abel, Richard L., Law as Lag Inertia as a Social Theory of Law, 1982

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Review: Law as Lag: Inertia as a Social Theory of Law

Author(s): Richard L. AbelReviewed work(s):

Society and Legal Change by Alan WatsonSource: Michigan Law Review, Vol. 80, No. 4, 1982 Survey of Books Relating to the Law (Mar.,1982), pp. 785-809Published by: The Michigan Law Review AssociationStable URL: http://www.jstor.org/stable/1288246

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LAWAS LAG: INERTIAAS A SOCIALTHEORY OF LAWRichard L Abel*

SOCIETYAND LEGALCHANGE.By Alan Watson. Edinburgh:ScottishAcademicPress. 1977. Pp. x, 146. ?3.75.In Society and Legal Change,l Professor Alan Watson has builtupon his vast knowledgeof legal historyto offera social theoryof

law. Since I possessno expertise n the historicaldata themselves,the objectof this Essaywill be to clarifythat theoryand criticize itfromthe perspectiveof contemporary cholarship n law and socialscience. Thetitle of the book itselfencapsulatesall of the issuesthatI wantto raise: conceptualstructure,he theoreticalrelationshipbe-tween"societyandlegal change,"and the political ideology implicitin this theoretical ormulation.I. CONCEPTS OF LAW AND SOCIETY

The two centralelements n ProfessorWatson'stheory,naturally,are law and society,but his conceptof law nonethelessremains ex-tremelyvague. Althoughhe acknowledges ome of the inherentam-biguities,he fails to resolve them or takescontradictorypositionsindoing so. The firstambiguity s whether he is speakingof positivelaw- lawin thebooks,the authoritativepronouncements f legisla-tors,judges, orjurists - or of living law - law in action, the behav-ior of lesserlegal officialsand laypersons,whichoftendeviates frompositive aw. Unlikecontemporaryocialscientists,Watson s neces-sarily dependentuponhistoricalmaterials hat arelargelylimited toofficialstatementsof law. I assume,therefore, hat he must be writ-ing aboutpositivelaw.2* Professor f Law,U.C.L.A.B.A.1962,HarvardUniversity;LL.B.1965,ColumbiaUni-versity;Ph.D. 1974,LondonUniversity. Ed.1. This bookincorporates nd elaboratesuponsome of the ideasWatsonput forward nhis earlier work, Legal Transplants. A. WATSON, LEGALTRANSPLANTS1974).2. The illustrations hathe uses seem to support his interpretation.He writesat severalplaces about a decree of the Roman Senate in the first century A.D. that permitted a marriagebetween uncle and niece, the purpose of which was to allow the Emperior Claudius to marryhis niece Agrippina. Pp. 38-40. Watson stresses the substantial divergence between this lawand a prior custom prohibiting incestuous marriages. But what has diverged from custom isthe positive law - this particulardecree - not the actions of other legal officials or the behav-ior of the population at large. Indeed, Watson acknowledges that during the succeeding three

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786 Michigan Law Review [Vol. 80:785Yet a social theory that deals only with positive law is open to anobvious criticism. Decades of sociological jurisprudence, legal real-ism, and sociology of law have rediscovered the gap between the lawin the books and the law in action and established that one can onlybe understood in relation to the other. Watson is obviously familiarwith this literature, and seeks to accommodate it:

Obviously n a work of the presentkindwhat mattersmost is "law inaction".If theonlylaw out of stepwithsocietywas that "inbooks" heobservationof it would have little social significance.I have tried toshow that "law in action"frequently diverges from the needs anddesiresof society. [P. 126.]But many of his examples deal only with law in the books. Watsonhimself appears to recognize this limitation by contradicting the pas-sage just quoted less than ten pages later:Thereis one thingI should like to makeexplicit. Throughout havebeen talking about legal rules, and not about how decisions arereachedby the courts thoughoccasionally udicialreasoningon lawhasslipped n - or how the legal systemactuallyworks. WhatI havehadto sayshouldbe treatedindependently f thepropositions f LegalRealistsor of the insightsof studentsof Sociologyof Law. [P. 135.]Watson seems never to have decided which was more important, thelaw in the books or the law in action. Confusion is the inevitableresult.3A related ambiguity inheres in the multifaceted nature of law, all

hundred years there were only two other known marriages of this sort - in other words, thatthere was virtually no divergence between custom and law in action. That Watson is onlyconcerned with positive law is confirmed by his statement, in another context, that "it is in thehighest degree . . . significant that no alteration occurred either to allow or to prohibit mar-riage with any niece for three centuries." P. 118. And elsewhere, discussing regimes of com-munity property, he finds "the same legal rule," operative in Visigothic Spain, medievalGermany, and contemporary California. P. 106. Since it is inconceivable that identical socialbehavior could be found in such different settings, Watson can only be referring to positivelaw.

3. Watson's uncertainty about whether he should be speaking of the law in the books orthe law in action reminds me of the perplexity of the King during the trial in Alice in Wonder-land about what should be considered significant evidence:"What do you know about this business?" the King said to Alice."Nothing," said Alice."Nothing whatever?"persisted the King."Nothing whatever," said Alice."That's very important," the King said, turning to the jury.They were just beginning to write this down on their slates, when the White Rabbitinterrupted."Unimportant, your Majesty means, of course," he said in a very respectful tone, butfrowning and making faces at him as he spoke."Unimportant,of course, I meant," the King hastily said, and went on to himself in anundertone, "important - unimportant - unimportant - important" - as if he weretrying which word sounded best. Some of the jury wrote it down "important,"and some"unimportant." Alice could see this, as she was near enough to look over their slates; "butit doesn't matter a bit," she thought to herself.L. CARROLL, ALICE IN WONDERLAND 126-27 (1946).


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Law as Lagpartsof which arecloselyrelated. It is impossible o studyone set ofsubstantiverules in isolation;even the totalityof substantiverulesmustbe seen in conjunctionwith legal processes, nstitutionalstruc-tures,the personnelof the legal system,and the like. Thus Watsonentertains he argument hat he "shouldalso have discussedadmin-istrativelaw, social welfare law, evidence and procedureand theworkingsof the court"(p. 126). Nor would it be sufficientto ex-amine the totality of legal phenomenathat performsimilar func-tions,for lawis, amongotherthings,"oneweaponin a wholebatteryof meansof social control;organizedreligion,economicconditions,widely-held deas of morality" p. 125). Watson'sresponseto theseself-criticismss twofold,if alsocontradictory.He insists,on the onehand,thathe has adopteda holisticapproach,andon the other,thattheexampleshe has chosenmake it unnecessaryo do so becausetheparticularawsanalyzedare immuneto the influenceof other socialforces. But onceagain,havingflirtedwithsociologyof law,he aban-dons it in the end: "[M]ynarrow focus is deliberate. My concernhas been to establish [only] whether rules of substantiveprivate lawareor arenot in stepwith the needs and desires of the society..."(pp. 126-27).ProfessorWatson'sconceptionof societyis even moreproblem-atic. Most of the time he treatssocietyas an undifferentiated, er-sonified whole; he repeatedlywrites of the "needs or desires ofsociety" p. 9) or finds rules"satisfactoryor the societyas a whole"(p. 24). True, he again seeks to anticipatethe attacks of pluralistpoliticalscientists,elite theorists,and Marxists(pp. 8-9), but not byanalyzing nterestgroups,strata,or classes. Instead,he proposestostudyonly rulesthat are "inconvenientor positivelyharmful eitherto societyas a whole or to largeor powerfulgroupswithin the soci-ety"(p. 9). He viewssocietyas eitheran organicwhole or as a seriesof interestgroupsutterlydominatedby a monolithicrulingclass.In selectingboth of his centralconcepts, in sum, Watson ad-dresses he theoretical ramework f the sociologyof law only to dis-miss it: He rejectsthe study of legal institutions and processesinorderto concentrateuponsubstantiverules,and he personifies oci-ety so as to renderunnecessaryany analysisof the politicalideas orbehaviorof particularndividualsor groups.4

4. The conceptual structures of comparative law and legal history on the one hand, andsociology of law on the other, may be so fundamentally incompatible as to make it virtuallyimpossible for one to accommodate the other. See Abel, ComparativeLaw and Social Theory,26 AM. J. COMP.L. 219 (1978).

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Michigan Law ReviewII. SOCIAL THEORIES OF LAW

These conceptual problems are compounded by, and contributeto, difficulties inherent in Watson's theoretical framework. It is nec-essary to begin with some basic epistemological issues. Watson ap-pears to employ a highly oversimplified notion of social theory. Hestates, for instance: "The fact that some swans are black would notconstitute proof of a theory that all swans were of necessity black"(p. 43). This flawed and simplistic formulation5 is an essential ele-ment in Watson's implicitly antitheoretical stance. Much of thebook attacks other theories that link society and legal change.6 Itdoes so by taking an extreme antihistoricist position in the traditionof Popper and Nisbet:7[T]heremust be some relationshipbetweenthe needs and desires ofsocietyand its legalrules. . . . But thisrelationship eemsimpossibleto define,perhapsbecauseit variesfrom state to state and from oneareaof law to another. [P. 134.]Yet, here again, Watson is caught in a contradiction: If the relation-ship is truly unknowable, then he cannot offer an alternative expla-nation. So he backs away to an ambivalent position that posits arelationship but simultaneously asserts that it is accidental andunimportant:Historical actorswill explainwhy any law is passedat the time it ispassed;but thesefactorsneed not be deeplyembedded n the life anddesiresof societyor the technicalskillsof the law-makers.[P. 90.]And he appears uncertain about even these "historical factors," forhe quotes Lord Devlin approvingly as wondering "whether the legis-lature selected the offences haphazardly" (p. 79).Watson's general theoretical skepticism is only a prelude to hiscriticism of specific theories of law in society. It is possible to distin-guish at least three of these theories. The first is associated withhistorical jurisprudence, perhaps most notably the work of Savigny;it asserts a natural harmony between law, as the spirit of the people,and society - at least until legislative action disturbs the harmony.The second is Marxist theory, which views law in capitalist societies

5. There are at least three problems with this formulation. First, "all swans are black" isnot a theory; it is a descriptive statement at a fairly low level of generality that might beemployed in constructing a theory. Second, theories are not proved; they are falsified or sur-vive falsification. Third, single-factor, nonstatistical explanations of the kind suggested byWatson's example (if the animal is a swan, it will be black) are rarely useful in social science,since social systems are so extraordinarily complex.6. See, e.g., p. 130 ("[N]one of the theories of the development of law or the relationshipbetween law and society are [sic] acceptable.").7. R. NISBET,SOCIALCHANGEANDHISTORY1969); K. POPPER, HEPOVERTY F HIS-TORICISM1977).

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as an expressionof the relations of productionand, therefore,as areflectionof the class domination inherentin these relations. Thethirdis the view of law as a means of socialengineering,a perspec-tive that can be tracedfrom Ihering throughPound'ssociologicaljurisprudenceo contemporary"policyscience."In groupingtogethertheories that are usually seen as distinct,even antithetical,Watson draws attentionto an importantcommonattribute:All three tacitly assume that harmonybetween law andsocietyis natural and attainable. They differlargelyin wheretheylocatethisharmonyhistoricallyand how theyevaluate t: The intel-lectual descendantsof Savigny place the ideal society in the past,againstwhich standard he presentseemswanting;8 ocial engineersassertthatharmonycould be achievednow, if only they weregivenfreerein;9 rthodoxMarxistsmaintain hatcapitalist awfurthers heinterestsof only one class andwill express hose of the entiresocietyonly when classes themselvesdisappearunder socialism(at whichpoint law, like the state,may witheraway). It is perhapsnot acci-dental that all three traditionsderive from the work of Germanscholarswritingwithin a few decades of each other,at a time whenrapidsocialchange appeared o threaten he capacityof law to servesociety.Watson'spurpose,however,is not to revealthe truththat theseotherwisedivergent heoriesmay share,but to exposetheircommonerror.To do this,he must caricature achapproach.Thushe quotesSavignyon the Zeitgeist,and scatteredextractsfrom some of hislesserknownfollowers,whileignoring he monumentalachievementof twentiethcenturyanthropology, specially legal anthropology,ndocumentingand explainingthe close connectionbetweenlaw andsocial structuren tribalsocieties.10Whileimplicitlyridiculingwhatnow appears,with the benefitof hindsight,to be Roscoe Pound'snaive overenthusiasm or social engineering,Watson convenientlyignores he indisputable actthat lawis usedto regulatevast areas ofsocial life in virtually every contemporary ociety. And he singlesout for criticism an obscure exponent of vulgar Marxism eventhoughhe is awareof the qualifications fferedby Engels,if he does

8. This would also include those who idealize tribal societies. For a criticism of such ideal-ization, see E. COLSON, TRADITION AND CONTRACT (1974). For a discussionof some of thedifficulties with Colson's position, see Abel, The Problem of Values in the Analysis of PoliticalOrder. Myths of Tribal Society and Liberal Democracy, 16 AFR. L. STUD. 132 (1978).9. See, e.g., S. NAGEL & M. NEEF, LEGAL POLICY ANALYSIS (1977).10. The literature is vast. See, e.g., S. ROBERTS, ORDER AND DISPUTE (1979); THE DIS-PUTINGPROCESS LAW IN TEN SOCIETIES L. Nader & H. Todd eds. 1978); Abel, A Compar-ative Theory of Dispute Institutions in Society, 8 LAW & SOCY.REV. 217 (1973).

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Michigan Law Reviewnot seem familiar with later refinements of Marxist theory.II

Having set up these straw men, Watson advances his own thesisthatthough here s a historical eason orevery egal development,yet to aconsiderable xtent aw in mostplacesat most timesdoes not progressin a rationalor responsiveway, and that the divergencebetweenlawand theneeds or wishesof thepeopleinvolvedorthe will of the leadersof the peopleis marked. [P. 5.]

Although he caricatures the theories that he seeks to discredit, Wat-son must acknowledge that most of them make some allowance fordivergence between law and society. To demonstrate the originalityof his own views, therefore, he does two things. First, he asserts thata much greater degree of divergence exists than that admitted byother theorists - a position that creates problems, as this Essay willsoon show. Second, he fails to mention scholars for whom the diver-gence was a central preoccupation, e.g., William F. Ogburn,12withhis theories of social lag, and William Graham Sumner, who wrote awhole book on the divergence between "folkways" and "lawways."13

In fact, in reacting against the prevailing theoretical framework,Watson has not escaped it but merely turned it upside down. Heappears to be asserting that law has never been congruent with soci-ety, is not presently used for social engineering, and does not expressclass domination.14 His method of supporting this position, like theposition itself, is a mirrorimage of the functionalism that he attacks.That functionalist metatheory, which pervades contemporary socialscience (including some Marxist analysis), has been lampooned as amode of analysis that seeks the meaning of social institutions by ask-ing questions in the form "If I were a horse," after the apocryphalfarmerwho, looking for a lost horse, asked, "If I were a horse, where

11. Pp. 4, 7. Particularly important Marxist writings that Watson might have treated in-clude G. LUKAS, HISTORY AND CLASS CONSCIOUSNESS (1971); K. RENNER, THE INSTITU-TIONS OF PRIVATE LAW (A. Schwarzschild trans. 1949);and Pashukanis, The General Theory ofLaw and Marxism, in SOVIET LEGAL PHILOSOPHY20th Century Legal Philosophy Series, vol.5, H. Babb trans. 1951). A great deal has been published since Watson's book appeared. See,e.g., M. CAIN & A. HUNT, MARX AND ENGELS ON LAW (1979); B. EDELMAN, OWNERSHIP OFTHE IMAGE (1979); P. HIRST, ON LAW AND IDEOLOGY(1979); T. MATHIESEN, LAW, SOCIETYAND POLITICAL ACTION (1980); E. PASHUKANIS, LAW AND MARXISM (B. Einhor trans., C.Arthur ed. 1978); E. PASHUKANIS, SELECTED WRITINGS ON MARXISM AND LAW (P. Beire &R. Sharlet eds. 1979); P. PHILLIPS, MARX AND ENGELS ON LAW AND LAWS (1980); C. SUMNER,READING IDEOLOGIES (1979); M. TIGAR & M. LEVY, LAW AND THE RISE OF CAPITALISM(1977).

12. W. OGBURN, SOCIAL CHANGE (New ed. 1950).13. W. SUMNER, FOLKWAYS (1906). See Ball, Simpson & Ikeda, Law and Social Change:SumnerReconsidered, 67 AM. J. Soc. 532 (1962).14. Indeed, the homology between Watson and the theories that he caricatures is evencloser for, as we will see later, he believes strongly that law can and should be brought intoharmony with society.

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Law as Lagwould I go?"'5 The functionalistobserves a social behavioror aninstitutionand askshimself,"If I were a member of that society atthattime,why wouldI behave in that fashion?" The observer's m-patheticresponse s then offeredas theexplanation or the institutionor behavior. Watsondoes just the opposite. He examinesa legalrule,askswhetherhe would want such a ruleif he were a memberofthat society,decidesthat he would not, and concludesthat the lawservesno purpose.He discussesat somelength,forinstance, he dis-tinctionbetweenmanifestand nonmanifest heft in Roman law andnotes thatthe penaltyfor the latterwas much less severe(pp.34-37).Why,he asks,was this so? Some scholarshave arguedthat there isgreaterdoubtaboutguilt in nonmanifest heft. Watson seems to askhimself,"If I were a Roman,would I find such doubt sufficientrea-son for greaterlenience?" His responseis unequivocal: "[T]herewas a degreeof illogicality n drawingthe distinction. Doubt as toguilt may be a good reason for not condemningthe action,but notforfixinga lowerpenalty" p. 37). Thisjudgment s Watson'salone.He offersno evidence that the Romans sharedhis feelings. Indeed,numerousempiricalstudies of decision-makingby contemporaryjudgesandjuriesshowthatdoubt aboutguilt generallymitigates herigorof punishment n both criminal16 nd civil17cases.WhatWatson s doingis importinghis ownjudgments ethical,political,economic,and social - about what the rule ought to be,implicitlysuggestingthat these are the only purposesthat the rulecould serve,and then concludingthat the rule serves no purpose.Such"antifunctionalism"asevengreaterepistemologicalproblemsthanfunctionalismtself. First,it is hard to conceive of a theoryoflaw in society groundedupon the principleof absurdity, rrational-ity, and disconnection.18Second,functionalismconstitutesno morethan a heuristicassumption n contemporary ocial science (and inmy opinionone that hasproved ts worth):The hypotheses t gener-atesarethensubjected o rigorous esting. It is not clearto me how"antifunctionalist"ypothesescould be tested since the numberofexplanations or a given rule is logically infinite(it does not servepurposes A, B, C . . .). Watson's method is rather like that of the

15. According to Max Gluckman, A.R. Radcliffe-Brown is the source of this criticism. SeeM. GLUCKMAN, OLITICS,AWAND RITUAL N TRIBAL OCIETY (1965).16. See H. KALVEN& H. ZEISEL,THE AMERICANURY 1971). See generally Symposium.Plea Bargaining, 13 LAW& SOCY.REV. 185 (1979).17. See, e.g., H. Ross, SETTLED UTOF COURT141 (1970). Compromise verdicts in tortcases, where the jury reduces damages because of uncertainty about fault, are widespread,though unlawful.18. Cf. P. FEYERABEND,GAINSTMETHOD1975).

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Michigan Law ReviewWesternanthropologistwho approachesa non-Westernsocietywitha set of preconceivedhypotheticalquestionsonly to be told, in re-sponse to the question "What if... ?", that it never happens.19 Butwherethe anthropologistmerelyfails to recognize he significanceofinformationbecauseof his approach,Watsonrunsthe greaterriskofacquiringmisinformation.His method is all the more difficult toevaluatebecausehisjudgmentsareimplicit. He speaks, orexample,of a ruleas being"the bestavailable,""selected or soundreasons,"or "suit[ed]o its newenvironment"p. 98). He asserts hat "it is notthecasethat when it is generallyknown that a betterruleexists else-where, hatrulewill be adopted" p. 105). Yet,he nevertells us whathe meansby "better,""best,""sound,"or "suited."In many ways, Watsonseems to me to be an unconfessed uti-litarian.20His approach ertainly uffers rommanyof the problemsof utilitarianism.Thereis a confusion of is and ought: Because aruleoffendsWatson'ssense of logic or purpose,he concludesthat itis arbitrary, ccidental,dysfunctional,and absurd(p. 84). He is as-sistedin reaching hesejudgmentsby a tendencyto be both ethno-centricand ahistorical.Sometimeshe measuresother societiesandtimesby his own standards:"Peopleeverywherewant the sameba-sic thingsfromtheir contract aw: simplicity,efficiencyand easinessof proof' (p.20). Quiteapart romthe impossibilityof talkingaboutwhat"peoplewant"as thoughthosewants couldbe known and wereidentical, his statement s obviouslyfalse- to beginwith,most so-cietiesat most times have not even had a "contract aw"21 andpatentlyan attempt o universalize he ideologyof liberalcapitalism.At othertimes,Watsonadoptsand seeks to generalize he model ofanothersociety: "[A]rule which was unsatisfactory t Rome is not

19. See Abel, CustomaryLaws of Wrongs n Kenya. An Essay in Research Method, 17 AM.J. COMP.L. 573 (1969).20. He writes enthusiastically, for example, of Jeremy Bentham, who, "above all, nevertired of pointing out how unsuitable much of English law was for the society as a whole ....In the present context one of the most interesting things is that, despite the efforts and influ-ence of Bentham, the realisation of the divergences - which still continue - dimmed." P. 132(footnote omitted).21. See M. GLUCKMAN,HE IDEAS N BAROTSEURISPRUDENCE70-203 (1965). Watsonwavers between disregarding and reluctantly acknowledging the historical specificity of con-tractual ideas:

It was a weakness of Roman law that no general system of contract emerged but onlyindividual contracts. . . . We should not be too ready to blame the Romans for not mak-ing a development which we, with hindsight, can regard as logical and appropriate, but itmay be reasonable to blame them for not recognising certain situations as giving rise to acontract. The most obvious and worst instance of a non-contract is barter.P. 18. This passage also illustrates how Watson conflates description and evaluation. Thejudgmental tone of the analysis could hardly be more pronounced: weakness, blame, logical,appropriate,obvious, worst.

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Law as Lagtoo likely to fit its new domicile better" (p. 79). But he is ahistoricalin an even more fundamental way. He judges the "appropriateness"of every law by a single standard - whether it promotes efficientsocial engineering - despite the fact that law has been viewed ascapable of ready manipulation to serve consciously chosen endsonly during the past few hundred years and even then primarily inWestern nations.22

Perhaps the most serious problem with Watson's theory is that itis not a theory at all. Once he has qualified his assertions to accom-modate the inevitable objections, there remains little more than arecommendation that we give greater weight to certain elements inour model of law in society, an argument with which few wouldquarrel. In order to show this I must back up a few steps. I notedearlier that Watson is drawn to exaggerate the claims of his theory inorder to accentuate its differences from the theories that he criti-cizes.23 Examples abound throughout the book:Theargumentof thisbook is that in the Westrules of private aw havebeenand are in largemeasureoutof stepwiththeneeds anddesiresofsocietyand even of its rulingelite;to anextentwhichrendersimplausi-ble the existingtheories of legal developmentand of the relationshipbetween aw and society. The abilityandreadinessof societyto toler-ateinappropriate rivate aw is trulyremarkable.The main but by nomeans sole cause of thisdivergences inertia,a lackof serious nterestin developing egal rulesto a satisfactorypoint and in changingthemwhen societychanges. Theoristsseekingto understand he nature oflawhaveneglected hesignificance f inertiaandthe longevityof legalrules. [P. ix.]"The ife of the law has not beenlogic: it has not been experience: thas been borrowing."In generalthe most importantelement in legaldevelopmenthas been the transplanting f legal rules, principlesandsystematicsrom onejurisdiction o another.2. . .The first conclusion must simply be that there does not exist aclose, inherent,necessaryrelationshipbetween existing rules of lawand the societyin whichthey operate.25

Yet, these assertions are too broad: They simultaneously deny thepossibility of any theory and contradict both our daily experienceand virtually all scholarly research on law in society. Watson is thusforced to concede that "some kind of general correlation would in no

22. Watson hints at differences in how and to what extent law is subjected to contempora-neous criticism, but this does not fundamentally alter his approach. P. 76.23. See text following note 11 supra.24. P. 79 (footnote omitted).25. P. 130 (footnote omitted).

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Michigan Law Reviewsense be hostile to the thesis in this book."26But then the centralquestionre-emerges.If the relationshipbetween law and societyisnot wholly random, t is necessary o offera social explanationforthe existence of each law throughtime, whether that law has beenborrowed, s a historicalresiduum,or has recentlybeen promul-gated. Watson fails to offer such an explanation,althoughhe hassome interesting hings to say about the sources of borrowed awsand the historicaloriginsof existingpractices.Furthermore, ven ifone concedes(as I think one must)that the strengthof the relation-ship between law and society varies among societies, across timewithin a society,and among legal institutionswithina given societyat any given instant, it is still necessaryto explain this variation.Watson does not do so.27

The most that Watson does is to offer a series of metaphors hatseemto do moreto mystifythe linkagethan to illuminate t. He seesthe law as sluggish,inert,never reallyable to get it togetherto dowhat it knowsit ought to - consumedby yawns, like Oblomov.28He refers o societyas a "home"or a "domicile" or theselazy laws(pp. 98, 79). By a slight metaphoricalextension,society might beseen as the toleranthousekeeperwho alternately gnores the messthatlaw makes and tidiesup afterwards.For, as we will see below,thereis yet anotherelementin this metaphor:What is needed is astricttaskmasterwho will makethe law shapeup. But these meta-phorsactuallydo little to advanceour understanding no more,say, than referring o the law as "a ass - a idiot"29or a "jealousmistress."30

Manyof the difficultieswith Watson's heoryof societyandlegal26. P. 125. Elsewhere he goes even further: "[I]t should be stressed that most statutesconcerning private law are in line with at least what is conceived to be the interest of society orthe rulers." P. 118. Hence, Watson's objection appears to be that he knows people's trueinterest better than they do.27. Watson occasionally suggests such variation, as when he asserts, "[E]veryone wouldaccept that certain problems are common to many relatively simple societies .. ." P. 4. Healso quotes both Friedrich Engels and the legal anthropologist Paul Bohannan to the effectthat, as society is progressively differentiated, the connection between legal and other socialinstitutions becomes less intimate. Pp. 6-7. A systematic development of this idea can be

found in Mayhew, Stability and Changein Legal Systems, in STABILITYNDSOCIALCHANGE(B. Barber& A. Inkeles eds. 1971). Yet, at other times he seems to deny even the possibility ofsuch comparisons: "It is, of course, impossible to determine whether Roman law or Englishlaw was less out of harmony with its society. No test exists which could measure this." P. 76.28. I. GONCHAROV,BLOMOVNew York 1929) (1st ed. Moscow 1859).29. P. 79 (quoting Mr. Bumble in Charles Dickens's Oliver Twist).30. See also H. Maine, Ancient Law 21 (1963) (discussing stationary and progressive socie-ties). The analogy between society and organism, comparable to the pathetic fallacy in litera-ture, is the object of a scathing and thoroughgoing attack by Robert Nisbet, with whoseapproach Watson is otherwise in substantial agreement. See note 7 supra.

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Law as Lagchangeare common to other theoretical tructures.By inverting hefunctionalism hat underliesSavigny, Ihering,and even Marx,Wat-son has necessarilypreserved he flaws that are fundamental o atleastthe vulgarizedversionsof these theoretical raditions. The cen-tralflaw is the insistenceupon explaining aw only as an instrumen-tal means to a materialgoal or, as with Watson,the homologousinsistencethat the law has no explanationbecause it does not ad-vancesuch a goal.31Such a monocausalview has long impoverishedsocialstudiesof law: Sociologistshave beencondemnedendlesslytorediscoverhe "gap";32conomistsstriverelentlessly o findthe legalframeworkthat will achieve "the" efficient allocation;33policy"scientists"iddle with rules and institutions n the search for maxi-mumimpact;and Marxistsdocumentonce againhow some laws di-rectly supportcapitalism.Yet, if these studies teach us one thing,itis the inadequacyof the theoretical rameworktheyshare. Lawdoesnotjust advanceor frustratematerialgoals; t can also be expressive,mystifying,or legitimating;t canprovidean arenaforstatuscompe-tition. Once thiscomplexity s recognized, xplanationsareimmedi-ately suggested for what puzzles Watson: the failure of law tochangerapidlyand the particularchangesthat do occur.34Law isconstrainednot only by instrumentalgoals but also by the require-ment that it be acceptedas legitimate,and the considerabledifficultyof legitimating egal change (wherethe exercise of power is mostclearlyvisible)is a majorreasonfor stasis and for the limitedrangeof the changesthat do occur.The very complexityof all social phenomenais reasonenoughfor seekinga more variedtheoryto link one sub-set, egal phenom-ena,withothers. For instance,Watson is often distressedby the ri-gidityof the categoriesof substantiveaw,whichproducewhat seem

31. I have argued above that "inertia"is not an explanation but the metaphorical use of aconcept borrowed from psychology, which in turn borrowed it from physics, where alone it hasa precise meaning.32. See Abel, Law Books and BooksAbout Law, 26 STAN.L. REV. 175 (1973); Abel, Fore-word to 12 LAW& SOCY.REV.487 (1978).33. For criticisms, see Baker, The Ideology of the Economic Analysis of Law, 5 J. PHIL.&PUB. AFF. 3 (1975); Heller, The Importance of Normative Decisionmaking, 1976 Wis. L. REV.385; Kelman, ConsumptionTheory,Production Theory,and Ideology in the Coase Theorem, 52S. CAL. L. REV. 689 (1979). See generally Sumposium on Efficiency as a Legal Concern, 8HOFSTRAL. REV.485-810 (1980);A Responseto the Efficiency Symposium, 8 HOFSTRA L. REV.811-972 (1980).34. For instance, Watson deplores the persistence of certain aspects of the Roman salescontract in other countries and subsequent periods: "The fascinating thing is that the lawyersall - explicitly or not - considered the question in terms of Roman law and minor deviationsfrom it. The example of Rome obscured from them the possibility of a more radical solution."P. 100.

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Michigan Law Reviewto him to be undesirable esults. But an adequateunderstanding fwhythisoccurswouldrequirea graspof linguistics,a recognitionofthedistinctiveproperties f legallanguage,and a theoryof why legallanguage s differentiatedn varyingdegreesin differentsocieties.35As thisexampleshows,it is not possibleto give an acceptableexpla-nationof a single legal phenomenon n termsof some otherequallyisolatedphenomenon.Watsonneverthelessattemptsto do so:It wouldseemin manycases[that] t will not mattergreatlyto societywhether he law adoptssolutionA or solutionB;the choiceis sociallyneutral. [P. 134.]And he concludes:This canonly mean that the role of private aw rulesin the well-beingof thestate, n theprosperity f merchants,n the happinessof individ-uals, is greatlyexaggeratedby lawyersand legal theorists. [P. 132.]But Watsonmisconceives he relationshipbetweenprivatelaw andthe state. Total legal systemsare imbeddedin, and support,entiresocieties. Inorder o see all of theconnectionsbetween aw andsoci-ety,it is necessary o findsubstantial ariation n thetotalities, whichmeanscastingone'scomparativeandhistoricalnet very widely. Noeconomist, or instance,wouldarguethat a country'scurrencys un-relatedto its capitalisteconomysimply becauseEngland'sshift todecimalcoinagewas relativelypainless. The significanceof moneycan only be seen if comparison s made with a nonmonetaryecon-omy. Watson'sdecision to restricthimself to "developedWesternlaw," excludingboth tribal societies at one extreme and socialiststatesat another,similarly imits the scope of his analysis.36AlthoughWatson occasionally recognizesthat lawmakingis acomplexprocessinvolvingmultipleinstitutionsand the interactionof numerousactorswhose interestsareofteninconsistent,37e nevercarrieshis analysis hrough o a logicalconclusion.Thus,at theveryoutsetof his argumenthe notes thatlaws, once passed,"arekept in

35. See L. FALLERS,AWWITHOUT RECEDENT1969); Abel, supra note 10; Danet, Lan-guage in the Legal Process, 14 LAW& SOCY.REV. 445 (1980).36. P. 6. This is especially unfortunate since there is reason to think that the degree ofinterrelatednessbetween legal and other social phenomena - the central concern of this book- exhibits its greatest variation across those societies.37. Suggestions of a more complex view of law in society are scattered throughout thebook, both in asides and qualifications and in concrete examples. Sometimes Watson ac-knowledges the expressive quality of law: "Legislation - even on private law - is very oftena 'gut reaction,' an immediate, strong response to some particularevent." P. 117. If this is trueof privateaw,howmuchmore s it likelyto characterizeublic aw,especially riminalegis-lation? This is, of course, Durkheim's well-known theory of the criminal law, which has stim-ulated a wealth of empirical studies that generally support it. See E. DURKHEIM,THEDIVISION FLABORNSOCIETY(Simpson trans. 1947). John Hagan, in an extensive survey ofstudies of criminal legislation, examined two instrumentalist perspectives - liberal pluralistand Marxist - and rejected both in favor of a more complex explanation that emphasizes

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existenceby factorssuch as the absenceof effectivemachineryforradicalchange,by indifference, yjuristicfascinationwithtechnical-ities,andby lawyers'self-interest" nd continues n a footnote: "Ofcourse,the machineryfor, and effectivenessof, legal change willvaryfromplaceto placeand time to time"(pp. 8, 11n.20). Here isthe foundation or a sociologyof law that wouldlook at bothinstitu-tional structuresand the socializationand organizationof the per-sonnelwho staffthem.38OccasionallyWatsondoes look at these,aswhenhe observes hat "oncedraftlegislation s prepared t may failto pass the legislaturesimply becauseof pressureof business"(p.117). Even here,however,the analysisdoes not fulfill its promise,largelybecauseit is strangelydevoidof politicalcontent- a prob-lem to which I will returnbelow.39We are not told why the re-sourcesof the legislatureareinsufficiento the demandsplaced uponit nor why, with its limitedresources, he legislaturechooses to sat-isfy somedemandsandnot others;nor are we told the circumstancesunderwhich,or theextentto which,the interpreters f the law- thelawyers canpursue heir own interests,or how theseinterestscor-respondwith those of othergroupsin society.The constant refrain of Law and Society - that most laws areuseless- tends to obscurewhatinsightsthe book does offer. I shalltry to show what is lost in Watson'sanalysis by brieflypresentingand reanalyzing ome of his own examples.AlthoughWatsonbeginswith illustrations rom Roman law, hesoon turnsto Englishlaw to forestallthe objectionthat the peculiarRoman concernfor legal theory may explain its abstraction romexpressive and status factors. See Hagan, The Legislation of Crimeand Delinquency. A Reviewof Theory,Method, and Research, 14 LAW& SOCY.REV.(1980).At another point, Watson discusses David Daube's theory that the institution ofpatriapo-testas was a form of status competition among the Roman elite:The principal explanation of the tenacity with which the Roman upper classes - for it isonly a question of that minority - stuck to these incredible rules is that they saw them asexpressing, and safeguarding, their innate superiority over the foreign rabble and proba-bly, in course of time, also over the rabble at home. There is no limit to the hardshippeople will bear for the sake of status, national or sectional.Pp. 28-29 (quoting D. DAUBE,ROMANLAW 85-86 (1969)). However, Watson ultimately re-jects Daube's theory on the ground of inadequate evidence, although he offers no more evi-dence for his own characterization ofpatriapotestas as "purposeless."Joseph Gusfield has given a persuasive account of the American experiment with Prohibi-tion - an equally "purposeless"law - as the result of status competition. See J. GUSFIELD,SYMBOLICCRUSADE (1963). John Hagan has generalized this interpretation and applied it toother laws. See Hagan, supra.38. The power of the interpreters to reform the law or keep it static is, despite every-thing, considerable. These interpreterswill form a small group within a society - indeed,a small group even among themselves - and their views need not correspond to those ofsociety as a whole.P. 121.

39. See notes 52-54 infra and accompanying text.

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Michigan Law Reviewdaily life (pp. 43-44). He devotes a chapter to English land law, cer-tainly one of the more complex and obscure bodies of legal rules,and concentrateson the failure of the English to abandon this systemfor one of comprehensive, compulsory land registration. He consid-ers and rejects a number of possible explanations, including the lackof enthusiasm among lawyers, both for economic reasons and be-cause "it is natural that a lawyer should derive pleasure from thecontemplation of an excellent piece of applied technique" (p. 58).But by thus understating the case, he obscures what we know to bethe real reason for the interminable delay in embracing a scheme ofland registration: the deliberate and energetic opposition of the or-ganized profession. This has long been notorious and is thoroughlydocumented in recent historical and critical scholarship.40 Further-more, the motive for that opposition is not the pleasure of aestheticcontemplation but simple greed: English solicitors still derive be-tween thirty and sixty percent of their income from conveyancing,depending on the size of the firm.41 Thus Watson's conclusion - "abody of law which is technically satisfying is not for that reasonalone suited to the needs of society" - should be the beginning ofanalysis, not the end, a signal to search for whose needs it does sat-isfy, not grounds for a premature conclusion that the rules have nomeaning.42Watson's next example is the English law of libel and slander,again a source of results that often appear bizarre. Here, too, heignores the obvious explanation that complexity and uncertaintyserve the interests of a powerful identifiable group, namely lawyers,whose efforts have in fact fostered just those qualities. But there isanother way of viewing the rules of defamation, which Watson's the-

40. See, e.g., B. ABEL-SMITH R. STEVENS, LAWYERS ND THECOURTS 9-61, 198-99(1967); M. ZANDER,LAWYERS NDTHEPUBLIC NTEREST71-72 (1968); Spring, Landowners,Lawyers, and Land Law Reform in Nineteenth Century England, 21 AM. J. LEGALHIST. 40(1977). For a general sociological theory of the professional struggle for market control undercapitalism, see M. LARSON,THERISEOF PROFESSIONALISM1977).41. 2 ROYALCOMMISSIONNLEGAL ERVICES,INALREPORT, MND.NO. 8648-1, at 107(1979).42. P. 58. This failure to pursue a political analysis is visible elsewhere. Watson notes thatin automobile accidents today the driver may not be sufficiently insured, so that the victimmay go uncompensated. The United Kingdom has compulsory insurance; the United Statesdoes not. This he finds absurd, sinceit has been obvious that any Government anywhere, at no real cost to itself since it couldrecoup from a levy on motorists, could introduce a system of reasonable protection for thevictim (or, if one prefers, at least for innocent victims) of automobile accidents.P. 106 (footnote omitted). This is only obvious if one remains ignorant of political reality.Private insurancecompanies wish neither to be forced to insure drivers who may be poor risks,nor to allow the state to enter the insurance business, which they fear may be the thin wedge ofnationalization. See, e.g., R. KEETON& J. O'CONNELL, BASICPROTECTIONORTHETRAFFICVICTIM 1-102 (1965).

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Law as Lagoreticalframeworkand methodologydo not let him see. I arguedearlier hatWatsonviews law as narrowly nstrumental, erhapsbe-cause he wants it to be instrumentally fficacious. Thus, when heperceivesa disjunctionbetween the purposethat he assignsa lawandits actualconsequences,he concludes hat the law is bothpoint-lessand sociallyharmful.The valueof this approachwill varywiththe legalsubjectmatter: Landlaw has arguablybeen of vitalimpor-tance to English society over the past five hundredyears;it is notobviousthat the same can be saidof the law of defamation.In orderto determine he importanceof defamation aw it would be neces-saryto look beyondthe substantiverules (the law in the books) tohowtheyareinvoked n litigation, n negotiation,n discussions,andevenin reflection thelawin action). To determinewhatwouldcon-stitutefrequentor rareinvocation,we would have to comparecon-temporaryEngland with other societies. Although those studieshave not been done, I think that we can hazard some educatedguessesabout what we would find. With the emergenceof mass,urban, ndustrializedocietythe defense of reputationagainstverbalor writtenattack,which is a preoccupationof conflictin tribal andpeasantsocieties,rapidlydeclines n importance.43Furthermore,hecharacteristicsf the disputantschange: Instead of disputesamongkinfolk,neighbors,andworkmates,we findrelativelypublic person-agessuingthe massmedia,oroccasionallyeachother. Disputesoverdefamationoftenseem to takeon the aspectof a game;indeed,onepartymayutterthe defamationprecisely o force the other to sue, inorder o publicize hedispute.44Defamationrules,then,arenot util-itarian n anynarrowsense: Theyneithercompensate he victim fortheinjury o his reputationnor deterthe utteranceof injurious alse-hoodsin the future. Instead, heyprovidea frameworkwithinwhichindividualscan fightfor status. If this is so, then the precisecontentof the rulesis irrelevant. The morecomplexand arbitraryhey are,the better. This is a verydifferentinterpretation f defamation awfromthat offeredby Watson:

43. I have sought to document this for Kenya. See Abel, Case Method Research in theCustomaryLaws of Wrongs n Kenya. Part II: SlatisticalAnalysis, 6 E. AFR.L.J. 20, 27-28, 34-35 (1970); for Africa more generally, see Abel, Western Courts in Non- WesternSettings. Pat-ternsof Court Use in Colonialand Neo-ColonialAfrica, in THE IMPOSITIONFLAW 188-89 (B.Harrell-Bond & S. Burman eds. 1979);for Turkey, see Abel, Book Review, 27 UCLA L. REV.223, 232-34 (1979) (reviewing J. STARR,DISPUTEAND SETTLEMENTN RURAL TURKEY(1978)); and in general theoretical terms, see Abel, Theories of Litigation in Society, 6JAHRBUCHORRECHTSSOZIOLOGIENDRECHTSTHEORIE65, 170-78 (1979). Vivid accountsof disputing in societies where reputation is of vital importance can be found in HONOURANDSHAMEJ. Peristiany ed. 1965); GIFTSAND POISONF. Bailey ed. 1971).44. See J. DEAN,HATRED,RIDICULE,OR CONTEMPT35-39 (1953).

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Michigan Law ReviewDespite ts importanceorthehappinessof individualsand thewelfareof society,the law of defamationhas been and is marredby gravede-fects which have caused it to be inefficientand out of step with theneeds and desires both of society as a whole and with any rulingelite.45

AlthoughI would not claim thatI haveprovedmy case,Watsonhascertainlyofferedno evidencethatthe law of defamationsignificantlyaffectseither the happinessof individualsor the welfare of society.A thirdillustrationmay be taken from a chapter n which Wat-son enumeratesmanyinstancesof what he calls "legalscaffolding,"elaborations f the law thatattempt o correctearliererrorsbutactu-ally producemoreproblems hantheysolve. These structures eacha level of complexity hat is often humorous: He quotesa piece ofEnglishsubordinateegislationthat took nearlyhalf a page just toannounce ts own title (p. 95). But by highlighting he ridiculous nan effort o demonstratehe inutilityof theselaws,Watson obscurestheiractualfunctions. A case in point is a South Africancriminalprosecutionn whichthe single charge againstthe accusedrequiredreferences o four regulations, our governmentnotices,and a stat-ute. Yet this complexitywas not accidental,dysfunctional,or eveninefficient.Watsoncomments hat"thebodyof thechargeconveyedthat the defendantbeing an Asiatic male had entered a particularpartof a sea-shorewhichhad been reserved or the exclusive use ofwhites."46 n otherwords,this "whitesonly"rule waspartof a bodyof racist regulationswhose very comprehensiveness, rbitrariness,andincomprehensibilityllowed a small whiteelite to use the formsof liberal democracyto enforce totalitariancontrolsupon a largeAsian,African,and mixedpopulation.47But in orderto acquire hisinsightit is necessary o abandonthe attemptto explainindividuallawsin termsof their narrowself-proclaimednstrumentalpurposesand insteadconsiderhow an entirebody of law interrelatesand isadministered.Oneadditionalset of illustrationswill have to suffice o substan-tiate my argument hat it is futile and positivelymisleadingto at-

45. P. 72 (footnoteomitted).46. P. 96 (footnoteomitted).47. DouglasHay recentlymadethis approach entral o his analysisof how eighteenth-centuryEnglishcriminalprocedure"putthe instruments f terrordirectlyat the disposalofthe dominant ocio-economic ctors,but under the guise of an impartial,determinate, ndhumane rule of law." See Klare, Law-Making as Praxis, TELOS,Summer 1979, at 123, 130(summarizing Hay, Property, Authority and the Criminal Law, in ALBION'SFATALTREE(1975)). For an American example of the use of equally vague vagrancy laws to control theworkforce, see Harring, Class Conflictand the Suppressionof Trampsin Buffalo, 1892-1894, 11LAW& SOCY.REV.873 (1977).

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temptto developa coherentand internallyconsistenttheoryof lawwith the theoreticaland methodological ools that Watsonhas cho-sen. The firstconcerns"legaltransplants,"he subjectof a previousbookand a chapter n thisone.48Watsonfirstattempts o determinethe sourcefrom which a particular ountrychose to borrow ts laws,but his conclusionsare sociologicallyand politically unsatisfying."In the firstplace,"he states,"the donorsystem may be chosen be-causeof the general respect n which it is held"(p. 98);but surelyitmustbe rare for the lawsof one countryto arouse"generalrespect"in the people of another. If the conceptof "respect"s to have anymeaning,exceptas rhetoric, t is necessary o specifythe small elite(presumablya functionallyspecializedcategory)whose "respect"ssignificant.The same difficulty roubles the next explanation: "Inthe second place national pride may determine that borrowingsshouldbe made,or should be restricted, rom some particularsys-tem."49The reifiedconcept of "nationalpride"does not becomeclearuntil Watsongives an example. Thereis strong oppositioninScotland o the importation f English aw andto the assimilationofthe two bodies of law. Yet, that oppositionis an expressionnot of"general espect"or "nationalpride"but ratherof thepoliticalviewsof identifiable ndividuals T.B.Smith,then a professorof ScottishLaw and now a Scottish Law Commissioner; notherScottish LawCommissioner;he Commissionas a whole;and ProfessorA.B. Wil-kinson- who constitutea coherentcategoryof academicScottishlawyers pp. 102-03).Nor does it refutethe explanationgrounded nthe self-interest f academic awyers o show that the LawSocietyofScotlandfavorsgreaterreconciliationof the two bodies of law andeven ultimate consolidation:50AlthoughI know nothingof the ac-tual facts, it seems plausibleto me that Scottishlawyersare losingdivorce and business clients to English competitorsand hope toregainor acquirethem throughthe assimilationof Englishlaw.The last two reasonsfor the sourceof legal transplantshatWat-son considersare "languageandaccessibility" nd "pasthistory(pp.104-05). These bland concepts once again conceal the politicalsourcesthat actuallyinfluencechoice. Watsonseeks to explainthefact that "neighbouring ountriesin Africa may have basically a

48. See note 1 supra.49. P. 102. Empirical research concerning public knowledge about law strongly suggeststhat national pride is preoccupied with other concerns. See generally A. PODGORECKI,W.KAUPEN, J. VAN HOUTTE, P. VINKE, B. KUTCHINSKY, KNOWLEDGE AND OPINION ABOUTLAW(1973); Sarat, Studying American Legal Culture. An Assessment of Survey Evidence, 11LAW& SoCY. REV. 427 (1977).50. See pp. 103-04 (quoting the Law Society of Scotland).



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Michigan Law ReviewCommonLaw or a Civil Lawsystem" p. 105). But mostpeople inany Africancountryspeak neitherEnglishnor French;they havelittleor no access to the (borrowed)nationallegal system;and theirhistoricalexperiencehas been one of oppressionby the colonialpower. Language, aw, and historyare sharedonly by colonialrul-ers andthe elites thattheypreservedor created. It was therefore hecoincidenceof interestsbetweenmetropolitanand colonialpoliticaland economic elites that explainsthe decision to retainthe coloniallegalsystem:The formergained political nfluenceand tradeadvan-tages,the latterstrengthenedhe supportof the metropolefor theircontinueddominance,and were enabled to legitimatethat domi-nance internally by their superiorability to manipulatethe legalsystem.51

III. LAG AS POLITICAL DEOLOGYWatson'sanalysisof law in society containsan implicit socialtheory,which I have tried to bring out above. But like all social

theoryit also expressesa politics,a set of underlyingvalues aboutthesocietythat he wouldliketo have. To understandWatson'spoli-tics, it is once again useful to begin with the title of the book: Bychoosing"societyand legal change"ratherthan the more common"law and socialchange,"52Watsonimpliesthat law necessarily agsbehindsocial normsand behavior,that it can only be a force forreactionnot progress. A political ideology of law as lag would beconsistentwitha Benthamitempatience,which is clearlyevident inWatson'scontention hat"everydemandfor law reform s a recogni-tion that law has come to divergefrom society" (p. 132). What issingularly ackingin this view is any notion that law ought to leadsociety, oughtto be an instrument or radicalchange,fromwhich Iinferthat he opposessuch change.Watson'sportrayalof law as lag is, moreover,distinctlyapoliti-cal. He does not tell us how specificsocial actors- individualsorgroups - seek to preservethe status quo or why they prevail.Rather,his explanationmay be summedup in the term "inertia,"rhetoricalpersonification f social structureand behaviorthat, be-

51. For an account of how the economic, political, and legal institutions imposed duringcolonialism preserve the dependence of the former colony upon the metropole after politicalindependence, see C. LEYS,UNDERDEVELOPMENTN KENYA 1974). A thorough study of thetransplantation from England to Ghana of a particular legal institution, the public corpora-tion, is R. POZEN,LEGALCHOICES ORSTATEENTERPRISESN THETHIRDWORLD 1976).52. See, e.g., J. COLLIER, AWANDSOCIALCHANGE N ZINACANTAN1973); W. FRIED-MANN,LAWINA CHANGING OCIETY2d ed. 1972);W. HARVEY,LAWAND SOCIALCHANGEINGHANA 1966).

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Law as Lagcause advanced as a self-contained interpretation, fails to recognizethe need for political analysis. I tried to show earlier that Watsonconsistently conceals the political element in his statements of andexplanations for such phenomena as the English conveyancing rulesand the imposition and preservation of metropolitan law in the colo-nies. This perhaps unconscious concealment is consistent with hisbasically conservative world view. Nor is the connection betweenconservatism and apolitical interpretation accidental. Those whohave denied the existence of pattern and necessity in historyscholars like Karl Popper and Robert Nisbet53- have been politicalconservatives seeking to confute radicals, notably Marx and laterMarxists, who maintain that historical trends do exist and should beused to further progressive causes.When Watson does mention politics, his goal seems to be to fore-stall criticism, to trivialize the political by ticking it off before goingon to more important things. Sometimes he is quite explicit abouthis motives: "[O]ne advantage of this way of proceeding is that weneed not concern ourselves with the definition of such sociologicalconcepts as stratification, class, power" (p. 9). To this end he definesthe process of legislation as fundamentally apolitical, in the senseboth that it has no political content and that therefore politics canonly distract from legislation:[F]or radical law reform something like legislation is usuallyneeded. . . . [O]ften egislation s not forthcoming, t least for centu-ries. Thebasic reasonfor this is quitesimplythatthe bodyor individ-ual which has control over legislation on private law often hasinsufficient ime or interestfor law reformsince it is usuallycharged

with other functionsespeciallyof a politicalnature. [P. 115.]Similarly,once draftlegislation s preparedt mayfail to passthe legis-laturesimplybecause of pressureof business. [P. 117.]Yet, the notion of legislation as apolitical is too clearly counterfac-tual to be maintained for long. Watson therefore makes a conces-sion that he phrases in such a way as to belittle the insight itcontains:[I]tscarcelyneeds to be said thatoften legislation s and has been theresultof pressure rom overt or hidden groups. Clearlya law mayresultwhich is beneficialto the groupbut does not conformto whatsocietyas a wholeneeds or wants. If little is saidabout thisphenome-non here it is only becauseit is so obvious and well recognized.54This seems to give the whole game away. If legislation is "often"political - as we all know to be, if anything, an understatement53. See R. NISBET,upra note 7; K. POPPER,upra note 7.54. P. 118 (footnote omitted).

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Michigan Law Reviewthen politics and not inertia must be the starting point for the studyof "society and legal change." Watson can only save his originalapproach in the face of that insight by depoliticizing the political,using techniques perfected by liberal political scientists in the lastfew decades. He minimizes the magnitude of social conflict in orderto obscure the extent to which the interests of individuals and groupsare incompatible.55 Although he cannot deny outright that the con-flict exists, since this contradicts our entire experience, his recurrentpersonification of society as an entity with "needs and desires"strongly suggests that these are unitary and consistent. Occasionallythe image is even more unambiguous, as when he states, "I use theword 'society' as a shorthand way of describing the people inhabitinga particular territory, or the citizens of a particular state" (p. 9).Since Watson can only hint at social harmony through implica-tion and metaphor, he must launch a direct attack upon those theo-ries that make social conflict their central concern. He does so byembracing a view of society that, in the United States, would be as-sociated with libertarianism, and elsewhere would be identifiable asan extreme form of individualism:Some legal theorists,as is well-known,have indeed maintainedthatwhat is good for the societyor the class is good for each individualmember of the society or class . . . I do not share [this view]. Theinterests andwishes)of an individualare,I believe,often at variancebothwith thoseof his societyas a whole and with his class. [P. 8.]This ideology attempts to undermine not only class analysis but eventhe significance of pluralistic interest groups, except those of themost transitory and fluid sort. Because Marxist class analysis ismore fundamentally irreconcilable with Watson's position, both the-oretically and politically, he is more scornful of it. His strategy is toridicule Marxism by selecting extracts from its more vulgarproponents:We Marxists ssert hat law is carriedout in practiceby meansof coer-cion and violence,becauseall law is a class law, and the law of theclasswithoutcoercion s not a law.56This is not Marx, or Engels, or Lenin, or Pashukanis, or Gramsci, orLucas, or indeed the writing of any recognized Marxist theorist, butratherthe oral remarkof an obscure Russian, Tumanov, at a confer-ence in Soviet Georgia in 1930. And when Watson cannot find aquotation from any Marxist that will make his point, he engages inimplicit attribution:

55. See, e.g., D. BELL,THEEND OF IDEOLOGY1960).56. P. 4 (footnote omitted).

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If one subscribes to the view that all law is class law then one has to saythat those in charge of legalities do not feel a deep need to keep privatelaw in line with the apparent needs of society; that this role is to a veryconsiderable extent delegated in effect to judges or jurists who, how-ever, are not put into a position where they can do the job efficiently oreffectively. [P. 89.]No doubt there are writers trapped in such narrow instrumentalism,but they are hardly representative of contemporary Marxist

scholarship.57Watson is more ambivalent toward the interest-group analysisdeveloped by contemporary political science out of the legitimatingideology of liberal democracy, perhaps because a pluralistic universeof multiple groups is clearly less threatening to his scheme than apair of irreconcilably opposed classes. He assimilates this liberalpluralism to his own image of society by portraying interest groupsas amorphous and interchangeable and by identifying the elite assimply the group that happens to be dominant at a particularmoment:

[G]roups with conflicting interests may be rather evenly balancedwithin the society. Rules may suit one class or one group which is veryactive in preserving them. It might be suggested that the result in asociety will be a mixture of some rules which harmonize with thewishes and needs of the whole society or the ruling class and of otherswhich suit particular groups or classes, and that form a pattern inwhich the various interests of groups and individuals are representedaccording to their strength in the society.5857. This more sophisticated approach can be illustrated by a recent article by Isaac Balbus,whose richness the following brief quotation can only suggest:

[T]he formulation that to the degree that the law does not responddirectlyto the demandsofpowerfulsocial actors it is autonomous,in the sense that itfunctions and developsaccordingto its own internaldynamics omits the possibility that the law is not autonomous from, butrather articulates with and must be explained by, the systemic requirements of capitalismprecisely because it does not respond directly to the demands of these actors.. . . Stated otherwise, the autonomy of the Law from the preferences of even the mostpowerful social actors (the members of the capitalist class) is not an obstacle to, but rathera prerequisite for, the capacity of the Law to contribute to the reproduction of the overallconditions that make capitalism possible, and thus its capacity to serve the interests ofcapital as a class.Balbus, CommodityForm and Legal Form. An Essay on the "RelativeAutonomy"of the Law,11 LAW& SocY. REV.571, 572, 585 (1977) (emphasis in original). See E. THOMPSON,WHIGSAND HUNTERS1975); Fraser, The Legal Theory We Need Now, SOCIALIST EV.,July-Oct.1978, at 40-41.

58. Pp. 8-9. This is not an isolated instance; the model of liberal pluralism pervades thebook:If bypressingor a reformwhich s generally ecognized sdesirable,hey[the egislators]couldalienateeven a smallnumberof theirsupporters,heymay prefer o stayaloof.P. 115[A]mendments of varying types may be accepted and the resulting legislation may corre-spond to the wishes of no one and be not even a satisfactory compromise.P. 117.



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Michigan Law ReviewAlthough this comment seems to admit the significance of politics, infact it is deeply apolitical. The groups remain anonymous, as dosuch concepts as elite or ruling class. Even more important, thegroups are portrayed as fungible, equally capable of influencing leg-islation in the same way. That is precisely the ideology of liberaldemocracy: The formal right of access to the political arena is con-founded with actual equality within it.But in fact Watson is not really an admirer of liberal democracy.He emphasizes the power of small interest groups to block legislationand tends to see the clash of inconsistent interests not as a necessaryprocess through which to arrive at the most satisfactory compromisebut as leading all too often to stalemate. The long quotation givenabove, which could be taken as a paradigm of liberal ideology, is infact rejected by Watson as inaccurate (p. 9). But if the law-makingprocess does not produce politically satisfactory rules, it does at leastproduce rules, and this, according to Watson, is all that is necessaryfor society:This bringsus to the eighthconclusion hatthe essential, nescapable

functionof a rule of private aw is to help in avoidingor settlingcon-flicts. The rule may also have, but need not have, the function ofresolvinga disputeforthe moral,socialor economicwell-beingof thesociety. Society's ssential take n rulesof private aw is theavoidanceorpeacefulresolvingof conflicts. This can occuronly if formal usticeis appliedbetween heparties o a dispute;both sides must be givenanequal chance to put their case, there should be no decision adhominem, imilarsituationsshould be judged alike,and so on.59This, Watson's ultimate conclusion, is fundamental to his argument,if it is also rather startling. It completes the process of depoliticiza-tion: Both substantive rules and legal procedures are essentially neu-tral. This means that lawmaking can properly be divorced frompolitics and should be so divorced because politics is so inefficientand often leads to dead ends. The necessary corollary is that formaljustice has meaning without reference to the content of substantiverules and can be attained by correctly designed legal procedures, re-gardless of the social system within which they operate. The latterassumption is disproved by everything that we have learned fromempirical studies of law in society during the past few decades.60

When a small group wishes the law changed this seldom seems to arouse society to defendthe status quo.P. 13359. P. 134 (footnotes omitted). See p. ix.60. See, e.g., Abel, Socializing the Legal Profession. Can RedistributingLawyers' ServicesAchieve Social Justice?, 1 LAW & POLY. Q. 5 (1979); Galanter, Why the "Haves" Come OutAhead- Speculationson the Limits of Legal Change, 9 LAW& SOCY.REV. 95 (1974). And see

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Law as LagThe former assumption is the necessary foundation for Watson'spolitical program.Just as Watson's theory of legislation is fundamentally apolitical,so his prescription for better legislation is to remove it from politics,which he sees as distorting or corrupting the perfect law. His bookends with a call for citizens to hand over the lawmaking power to abody of experts, who would be given the autocratic powers and otherresources necessary to replace our messy collection of rules - theproduct of history and political conflict - with perfect codes:[I]twould be beneficial o have a law makingbody intermediatebe-

tweenthe courtsand the legislature;withgreaterand moresystematicpowersof law makingthan courtshave,but not subject o the politicalpressures xperiencedby legislatures.. . .Theoretically t should be possibleto makethe legal rules co-incide with the needs and desires of society. To some extent it is aquestionof allocatingsufficientresources. . . Codes in the modernworld,whateverelse they may be, should be seen as a step towardsdeliberately ationalisinghe law. The same is true of the settingup of

permanentbodies with the duty of consideringaw reform.The preparation f an originalcode representsa uniqueopportu-nity to bringlaw into line with societyat a singlesweep ... .61The lag in law is thus explained - it was caused by politics. Andthe solution is clear - harmonize law with society by excluding thepoliticalCONCLUSION

Professor Watson's book is a missed opportunity. Recent socialstudies of law are impoverished by their parochial focus on contem-porary legal institutions within a single country. Our theories couldbe enormously enriched by comparative and historical scholarship.But that scholarship must meet the canons of contemporary socialscience. Let me summarize those criteria here, as I have appliedthem in the Essay.62 The starting point must be a statement of val-ues, for the scholar's vision of the good society influences not onlymy editorial introductions to the Law & Society Review, vols. 11 & 12 (on unnumbered pagesintroducing each issue).61. Pp. 133, 136. Watson speaks admiringly of historical instances where this occurred:"A strong Emperoror King ... could very quickly . .. make a legal reform which was obvi-ously needed." P. 115.62. I have attempted a more comprehensive statement of the position and prospects ofsociolegal scholarship. See Abel, RedirectingSocial Studies of Law, 14 LAW& SOCY.REV.805(1980).

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Michigan Law Reviewwhathe deemsworthyof studybutalsothekindof explanationshathe will entertain.Someepistemologicalpositionmustalso be chosenand adheredto rigorously. One of the principaldangersto guardagainst s the sociologicalequivalentof the patheticfallacy- read-ing into the actionsof other ndividuals,andespecially he actions ofgroupsand entiresocieties,one'sown motives and aspirations,oftenin the name of functionalism. These preliminarydecisions willlargelydetermine he theoryof societywith which the investigatorbegins- thenatureof its constituentunits(e.g., individuals, nterestgroups,strata,or classes)and the relationsbetween them (e.g., con-flictor consensus,equal or dominant/subordinate).I believe that we can, and must, be more positive about theproperconceptualization f the legal ingredientsof an adequateso-cial theory. Becauseall institutions, he legal amongthem,performmultiplefunctions,and all functions,includingthe legal, are per-formedby more than one structure,t is essential thatwe definetheboundariesof studyfunctionallyand not, for instance, imit our in-terestto state institutions. Because there is interactionamong thevarious nstitutions hatperform egal functions,one institutioncan-not be understood n isolation: A holisticapproach s necessarytocomprehendhow change n one partproducescompensatory hangeelsewhere.Finally,andperhapsmostimportant,an adequatesocialtheoryof law cannot be constructedout of the ideologythat consti-tutesthe fundamentallegitimationfor contemporaryWesternlegalsystems. That legislators, udges, administrators,awyers,scholars,politicians,and policy-makersustify laws in terms of their declaredpurposesdoes not mean that such purposesexplainthose laws, northatthe deviationof laws fromtheir statedgoals requiresus, in de-spair,to adopta theoryof law as lag. Law simplyis not primarilyinstrumental thereare usually many obvious and betterways toattainthe ostensibleobject; aw is rather deological, symbolic,ex-pressive,and mystifying. If socialanalysismustalwaysbe sensitiveto latentfunctionsunderlying he manifest,this wider view is abso-lutely vital for an understanding f law, which constantlyseeks todistract he observerwith the siren call of "purpose."And amongthelatentfunctions,one thatdeservesparticular ttention s the self-interestof those occupationalspecialists(whethergovernmentoffi-cials or privateprofessionals)who most vehemently proclaimthemanifestfunctionsof law.

Comparativeaw and legal historyno longercan be, indeed nolongerare,content o confinethemselves o doctrinalanalysisof pos-itive law. But the social theoryof law cannotbe a mereadjunctto

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March 1982] Law as Lag 809doctrinalanalysis,a series of qualifications acked on to an enter-prisethat otherwiseremainsunchanged.Furthermore,ocialtheory,if taken seriously,forces us to confront the politicalcontent that isinextricablynvolved in any accountof law and, a fortiori,in anyprescription or reform. Studies using historical and comparativematerials o constructa socialtheoryof whenandwhy legalrules arepreservedunderchangedsocialconditions,andassessing hatpersis-tence in terms of explicitly stated values, would be a majorcontribution.

Abel, Richard L., Law as Lag Inertia as a Social Theory of Law, 1982

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Transcript of Abel, Richard L., Law as Lag Inertia as a Social Theory of Law, 1982