Banakar_Merging Law and Sociology_pp. 44-53

8/10/2019 Banakar_Merging Law and Sociology_pp. 44-53

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The lnside and Outside 1Law 5

CH PTERTWO

The nside and Outside

o

Law

Introduction

t

was concluded

in

the previous chapter that the theoretical

constitution

of

mainstream sociology could not by itself explain away

the fragmentation of socio-legal research. In this chapter, we continue

the search for the sources

of

the problem by turning our attention to

the forms of knowledge which are produced by observing and

\

experiencing the internal or external realities

of

law.

As argued in the introductory chapter, we can distinguish at least

four standpoints each capable

of

producing a specific form

of

knowledge and interest pertaining to law. The first standpoint

is

based

on the perspective

of

insiders who participate

in

and reproduce legal

processes and various institutional practices associated with law (the

inside participants). The best example

of

this group

is

practicing

I

lawyers such as judges or barristers. The second perspective belongs

N

to insiders who observe legal processes without participating in them

(the inside observers). A legal scholar systematising and expounding

legal decisions and cases or a solicitor advising a client or briefing a

barrister can be long to this second category. The third category

consists

of

outsiders to law, who for a limited period

of

time,

participate in legal processes (outside participants). Examples of this

group are plaintiffs, defendants, juries, lay judges and witnesses. The

fourth perspective belongs to those who observe legal processes and

institutional practices

ofthe

law from the outside without participating

in legal processes (the outside observers). Sociologists studying law 's

effects or journalists reporting on trial proceedings can belong to this

second category. (See Diagram One on the next page.)

The perspectives described aboye are not mutually exclusive and,

in principIe, the same person can entertain more than one such

perspective

in

a day's work. A lawyer, for example, can act as

an

inside participant in one social setting by making a judgement and as

an outside observer

in

another setting by providing legal advice. In the

same day' work, the same lawyer might even act as an outside

participant by appearing before a court as a plaintiff or defendant. The

important characteristic

ofthese

perspectives, which we shall return to

further on, is that they interact with and inform each other. The

totality of what we perceive as law

is

1 shall argue, the outcome the

interaction of such perspectives at any given time and place.

Participation Observation

Insider's

Perspective

Outsider's

Perspective

l. Inside Participant 2. Inside Observer

- Judges - Legal Advisors

- Barristers - Legal Scholars

3.

Outside Participant

4.

Outside Observer

- Juries - joumalists

- Plaintiffs

sociologist

Diagram One

The inside participants, such as judges, and the inside observers, such

as legal advisors, share the practical insider attitudes and legal know

how, which the outside participants and outside observers usually (but

not always) lack. Since the focus

of

this chapter is on forms

of

knowIedge and understanding of law, 1 shall in the following employ

the concept

of

"Iawyer" to represent the insiders who per definition

posses a legal know-how and their knowledge is rooted in the internal


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48 Merging Law and Sociology

system , is to transcend the focus on laws, legal doctrine and the legal

system in order to construct a theoretical understanding of that legal

system in tenns

of

the wider social structures .3 That

is

why the law,

legal prescriptions and legal definitions are not assumed or accepted,

but their emergence, articulations and purpose are themselves treated

as problematic and worthy ofstudy .4

The second orientation is committed to a juristic paradigm, which

reaches its extreme form in Evan s fifth approach, which he called

methodologic al analysis where sociology

is

used not for substantive

analysis but basically as a tool for data coIlection.

5

This orientation

distinguishes itself by implicitly or explicitly accepting the hegemony

of positive law

in

relation to society. Thus, it tends to treat the nature

of the legal order as unproblematic.

6

t is worth noting here that this

type of methodological analysis, which

is

in its extreme fonn rare,

is

interestingly enough methodologicaIly problematic. Within the

philosophy

of

social science it is maintained that there exists an

intricate relationship between sociological theorising and reflection

(or the images of the social world used as a point of departure for our

studies), on the one hand, and the development, employment and

application

of

various methods of research, on the other. Assuming

3

C. M.

Campbell and Paul

Wiles,

The Study of

Law in

Society in

Britain in

(1976)

10 Law and Saciety Review

547-78 at 553.

4

Ibid.

5 Campbell and

Wiles

also argue

in

a similar fashion sharply

distinguishing between sociology of law-which

they view

as a speciality

within general sociology aiming

to

illuminate

the

relationship between

legal

order and social order-and socio-legal studies,

which

according to them

focuses

on

the problems o f justice and law. See C. M.

Campbell and Paul

Wiles,

The

Study

ofLaw in Society in Britain in

(1976)

10 Law nd Saciety

Review 547-78.

6 Also see Roscoe Pound, Sociology of

Law

and Sociological

Jurisprudence

in

(1943) 5

University l Taranta Law Jaurnal

at

2-3.

Pound

distinguished between sociology of

law, which

proceeds from sociology

towards law and sociological jurisprudence

which

proceeds from historical

and

philosophical jurisprudence to utilization of social sciences

and

particularly of sociology,

toward

a broader and more effective science of

law .

The lnside and Outside

1

Law 49

that this conclusion is correct, one must view any analysis

of

the law,

or any other social phenomenon for that matter, that claims to have

been conducted exclusively to gather data, without fonnulating and

reflecting on its underlying assumptions or its socio-political aims and

aspirations, with great suspicion. This is also why divorcing the

juristic approach (or socio-legal studies as it has been used to

indicate the academic lawyers' interest in the application of social

scientific methods of analysis) from a more sociologicaIly and

theoreticaIly aware analysls of the law (or the sociology of law )

amounts to one of

the most damaging dichotomies of the socio-legal

field. At the same time this question is difficult to debate criticaIly

because, in the short term, the academic lawyers who are making their

careers in law gain little in terms of the scientific stakes of their

field by making a serious commitment to social sciences. So,

in

a

recent piece, we find Phil Thomas and SaIly Wheeler celebrating the

fact that while sociology

of

the law is most marginal to curriculums

in both Sociology and Law and has little foothold in the academic

research community, socio-legal studies has gone from strength to

strength .7 The socio-legal studies that Wheeler and Thomas are

celebrating is, of

course, not an altemative to, but a branch

of

legal

studies, that inserts into the world of academic lawyers a review of

values and standards that will aIlow academic legal studies to develop

and change . 1 do in principie share the goals that Wheeler and

Thomas are setting out for socio-legal studies. Yet 1 do not see how an

effective, lasting and fundamental review of values and standards can

be brought about without full theoretical engagement and commitment

to advancing social scientifically aware socio-legal research.

The juri stic approach, as 1 shaIl caIl it here for lack

of

better

concept, distinguishes itself from the more sociologicaIly committed

studies

of

law by giving precedence to the practical insider attitudes,

conceptions and experiences of law and legal institutions at the

expense

of

other forms

of

legal experience or knowledge (such as

7 Sally Wheeler and Phil

Thomas,

Socio-Legal Studies in David J.

Hay ton (ed.)

Law s Future(s)

(Oxford, Hart Publishing, 2002) at 274.


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50 Merging aw and Sociology

those

of

the outside observers or outside participants).8 According to

this internal viewpoint, law is a pragmatic tool, primarily concerned

with providing ad

hoc

and instrumental knowledge which can

contribute to the resolution

of

legal problems.

9

A sociology

of

law,

which

is

developed under the influence

ofthe

juristic paradigm, would

understandably run the risk

of

remaining a theoretically eclectic

instrument of research that

is

an

auxiliary

to legal studies and polity.IO

Furthermore, when the concerns of legal studies develop into a

paradigmatic basis for the sociology of law, the sociological studies

of

law also run the risk of becoming "colonised" by law and legal

studies. Under such "colonisation", the legal community explicitIy or

implicitIy determine which questions are worth investigating and

which answers are relevant. Hence, choosing legal studies as a point

of

reference or

a basis for constructing an academic identity for the

sociology

of

law---eannot be the most fruitful strategy for promoting

the intellectual, disciplinary and academic interests

of

the sociology

of

law.

8 Roger CotterrelI compares the first orientation, which he calIs

"sociology of law", with "contextualism", which requires "particular legal

subjects as

defined by

lawyers to

be studied with a broad awareness of

social consequences and social origins of the law". See Roger CotterrelI,

Law s Community: Legal Theory in Sociological Perspective (Oxford,

Clarendon Press, 1995) at 76.

9 Cf. Max Travers, "Put ting Sociology Back into the Sociology of Law"

in (1993) 20 Journal 01 Law and Society 434-51 at 443, Vilhelm Aubert,

lnledning titl riittssociologi (Stockholm, AWE/GEBERS, 1980) and Julius

Stone,

Law and the Social Sciences: The Second HalfCentury

(University

of

Minneapolis, 1966) at 5.

10

For examples

of

definitions of sociology

of

law as an auxiliary to law

see Brit-Mari Persson-B1egvald (ed.) Contributions to the Sociology 01 Law

(Copenhagen, Munksgaard, 1966) at 2; Vilhelm Aubert, Sociology 01 Law

(London, Penguin, 1969) at 10, Hakan Hydn, "Sociology of Law in

Scandinavia" in (1986)

13

Journal 01 Law and Society at 131-43, and Jorgen

Dalberg-Larsen, "Sociology of Law: A Scandinavian Perspective" in Henrik

Garlik Jensen and Torben Agersnap (eds.)

Crime Law and Justice

in

Greenland (Copenhagen: New Social Science Monographs, 1996) at 27. For

examples from the English socio-legal studies movement see Philip A

Thomas (ed.) Socio-Legal Studies (Aldershot, Dartmouth, 1997).

The

lnside and

Outside 01

aw 5

According to John

F.

Manzo who approaches the sociology

of

law

from the standpoint of ethnomethodology, which is a rather neglected

perspective within the sociology

of

law, the juristic perspective

dominates the field. Manzo argues that "whether we speak

of

positivist, realist, critical, feminist, or other perspectives, current

sociolegal research is consistentIy defined by principIes that are

contained in the law, and the ideology surrounding legal practice".ll

The sociology of law, he then adds, is "informed by priorities that

exclude and preclude the study

of

legal actors' activities

in

their own

terms, without reference to larger sociological questions and without

prioritising legal standards

of

conduct",12

t

could be argued, of

course, that Manzo exaggerates the dominance of the juristic

perspective and there

is

an increasing awareness and interest in the

agency. However, a brief look at recent publications within the field

leaves little doubt as to the continued prevalence of the juristic

paradigm. An increasing number

of

socio-legal scholars might very

well be aware

of

the need to describe how the law

is

understood,

experienced, used, and reproduced by ordinary citizens and in the

course their everyday activities, but this awareness does not translate

into the general direction adopted by the bulk

of

socio-legal research.

No matter how we view the field, the number

of

actor-based

examinations

of

law and legal phenomena, which give priority to, and

depart from,

an everyday perspective

of

ordinary people on law, are

considerably smaller than macro or structural studies. This neglect of

the actors' perspective, understanding, and experience

of

legal

phenomena Le. the bottom-up perspective), in favour

of

stressing a

macro or structural understanding

of

the law and the legal system, a

tendency inherent

in

the juristic approach, clearly causes a theoretical

John F. Manzo, "Ethnomethodology, Conversation Analysis, and the

Sociology of Law" in Max Travers and John F. Manzo (eds.) Law in Action

(Aldershot, Ashgate, 1997) at

4.

12 Manzo, ibid., at 5.


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5

Merging Law and Sociology

imbalance within the sociology

of

law which

is

detrimental to its

development as a social scientific tradition.

13

The sociological studies

of

law-which

are methodologically and

theoretically informed and structured by various schools within

mainstream sociology---can also be criticised for their various

shortcomings. Sorne

of

these studies tend, for example, to confine

themselves to the social consequences

of

legal action and regulation,

while ignoring the internal mechanism

of

the legal system,14 Many

sociologists who endeavour to study the law tend to observe legal

processes and structures from the outside. Although their distance

from the taken-for-granted values, beliefs and patterns

of

practices

within the legal system allows them to raise questions that would not

be raised by legal scholars (who are part

of

the reproduction

of

the

authority

of

the law), it nonetheless limits their perspective in one

important respect. By the virtue

of

their position, they tend to focus on

law's interaction with its societal milieu.

15

This also implies that the

sociologist loses sight of law's view from within, .e. the

understanding

of

the law in terms

of

the legal experiences

of

those

engaged in law's processes and how the legal system operates

internally. This is not to say that the sociologist cannot access legal

reasoning or the lawyer's understanding

of

the law, or grasp the

internal operations

of

the legal system, but only serves to emphasise

that he/she cannot do that by observing legal behaviour, processes and

13 Among the factors which cause and sustain this imbalance are the

macro character

of

the legal system and what Sarat and Silbey described as

the puB of the policy audience . See Austin Sarat and Susan Silbey, The

PuB

ofthe

Policy Audien ce in (1988) 10 Law and Policy 98-166.

14 Cf. A. Bancaud, Sociologen och ratten eller Frestelsen att skanda in

(1987) 4

Tidskriji jOr

rdttssoci gi

119-34.

15 There are, of course, sociologists who have successfuBy transcended

the limitations

of

the outsider's perspective.

For

a classical example see

Doreen

McBamet's

study

of

the operation

of

criminal courts. Such exceptions

demonstrate that the sociological limits in this regard are not those

of

sociology, but a function of the role adopted by sorne sociologists of law.

Doreen 1 McBamet, Conviction: Law the State and the Construction

1

Justice (London, MacmiBan, 1981).

The

Inside and Outside ofLaw 53

structures exclusively from the outside. Thus, it

is

understood that the

sociologist who studies law from the outside (and a large number

of

sociological studies

of

law belong to this category) is expected to t y

to avoid making comments on matters defined by lawyers as technical

legal issues, which are only visible to initiated insiders.

One important point

is

worth re-emphasising here. As 1 pointed out

in the introduction the notions

of

the inside and outside

of

law are

to be regarded as ideal typical concepts capturing two extreme

positions which are otherwise better described as experience-near

and experience-distant

in

relation to the law and its institutions.

While the former distinction indicates two extreme positions the latter

indicates the degree

of

involvement with (or in) law's practices and

institutions. What we need to keep

in

mind

is

that there

is

nothing

pennanentIy set or irnmutable about the form, boundaries or content

of

the law. Law and all its manifestations are constantIy in a state

of

flux. Thus, the application

of

the inside/outside

of

law is used here not

to describe how the law is

de

facto constructed, but to forcefully

demonstrate the dilemma

of


of

the law.

2 Examples

Let us expand and c1ariry this point using three examples

of


of

law from the outside. The first example

concerns a sociological examination

of

how law is affected by

information technology. The second example

is

part

of

Donald

Black's sociological theory

of

law. These two examples are chosen

because they represent empirically grounded and sociologically

informed socio-legal research and theorising. Finally, the third

example presents a part

of

feminist studies concerning the status

of

women within the legal profession.

The impact of

IT

on legal practice

During 1995, in a study

of

the impact of information technology on

legal practice

in

the U.K., David S Wall and Jennifer Johnstone sent

out questionnaires to each

of

the 1,273 lawyers who practised

in

Banakar_Merging Law and Sociology_pp. 44-53

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