Sociology of law
Its object and that of jurisprudence focused on institutional questions conditioned by social and political situations converge - for example, in the interdisciplinary dominions of criminology and of economic analysis of law - contributing to stretch out the power of legal norms but also making their impacts a matter of scientific concern.
[19] The centre of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but in society itself, and must be sought there at the present time".This was subjected to criticism by the advocates of legal positivism such as the jurist Hans Kelsen for its distinction between "law created by the state and law produced by the organisational imperatives of non-state social associations".
He highlighted how law becomes a "factor in social transformation in democratic societies of the kind that are governed by the consent expressed by universal suffrage of the population practised at regular intervals".
Only after legislative authority was established did Indian legal scholars under the influence of John Austin begin to describe this phenomenon of codification and common law.
Most works focused on litigation, but one writer, Ashutosh Mukherjee stood out: "The law is neither trade nor solemn jugglery but a living science in the proper sense of the word".
[36] Still other scholars, most notably the American sociologist Donald Black, developed a resolutely scientific theory of law on the basis of a paradigm of pure sociology.
[37] In turn, as ´´applied science´´ it is focused on the solution of concrete problems, which is why - given the theoretical and methodological shortcomings of the study of causes and effects particularly in crime-related matters - the attention of contemporary sociologists is absorbed in the identification and analysis of risk factors (e.g., turning children and youth in potential offenders) and protective factors (tending to bring about "normal" personalities and ´"good" community members)[38] Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhmann, who presents law or "the legal system" as one of the ten function systems (see functional differentiation) of society.
In Poland the work of Adam Podgórecki and his associates (often influenced by Petrazycki's ideas) was especially notable; in Sweden empirical research in sociology of law in this period was pioneered especially by Per Stjernquist, and in Norway by Vilhelm Aubert.
Among the recent influences can be mentioned the work of the French philosopher Michel Foucault, the German social theorist Jürgen Habermas, feminism, postmodernism and deconstruction, neo-Marxism, and behaviorism.
[45] Its founders believed that the "study of law and legal institutions in their social context could be constituted as a scholarly field distinguished by its commitment to interdisciplinary dialogue and multidisciplinary research methods".
On this view, for the social scientific studies of law to transcend the theoretical and empirical limits that currently define their scope, they need to go beyond artificial distinctions.
[61] It should not, therefore, be confused with the legal sociology of many West European countries or the Law and Society scholarship in the US, which foster much stronger disciplinary ties with social sciences.
[64] Notable practitioners of socio-legal studies include Professor Carol Smart, co-director of the Morgan Centre for the Study of Relationships and Personal Life, (named after the sociologist, David Morgan), as well as Professor Mavis Maclean and John Eekelaar who are joint directors of the Oxford Centre for Family Law and Policy (OXFLAP).
Instead, it employs a wide variety of social scientific methods, including qualitative and quantitative research techniques, to explore law and legal phenomena.
[69] The most influential sociological approach during this period was, however, Marxism—which claimed to offer a scientific and comprehensive understanding of society as a whole in the same way as structural-functionalism, although with the emphasis on the struggle between different groups for material advantage, rather than value-consensus.
These included historical studies about how particular statutes were used to advance the interests of dominant economic groups, and also Pat Carlen's memorable ethnography,[70] which combined analytic resources from Marxism and interactionism, especially the sociology of Erving Goffman, in writing about magistrates' courts.
He was fortunate enough to recruit a number of young and talented social scientists, including J. Maxwell Atkinson and Robert Dingwall who were interested in ethnomethodology, conversation analysis, and the sociology of the professions, and Doreen McBarnet who became something of a cult figure on the left after publishing her doctoral thesis,[71] which advanced a particularly clear and vigorous Marxist analysis of the criminal justice system.
One can note, however, that it has always offered a more radical and thorough-going way of theorizing action than interactionism (although the two approaches have a lot in common when compared to traditions that view society as a structural whole, like Marxism or structural-functionalism).
During his time at the center, J. Maxwell Atkinson collaborated with Paul Drew, a sociologist at the University of York, in what became the first conversation analytic study of courtroom interaction, using transcripts of coroner's hearings in Northern Ireland.
Robert Dingwall and Philip Lewis[73] edited what remains an interesting and theoretically diverse collection, bringing together specialists from the sociology of law and medicine.
The best known study to date has, however, been published by the American scholar Richard Abel[74] who employed ideas and concepts from functionalist, Marxist, and Weberian sociology to explain the high incomes and status that British lawyers enjoyed for most of the twentieth century.
There has been a great deal of interest in the implications of Foucault's ideas on governmentality for understanding law,[76] and also in continental thinkers such as Niklas Luhmann and Pierre Bourdieu.
[83] Social evolution has converted law into a mighty – perhaps the most important – reference of civilised life by substituting traditional bonds conditioned by identities of “blood” or territory for a new type of subordination specifically legal and voluntary between actors that are equal and free.
The degree of abstraction of rules and legal principles increases constantly, the system acquires autonomy and control over its own dynamics, allowing the normative order of society to manage without religious legitimation and the authority of customs.
In modern societies law is thus distinguished by (1) its autonomy in relation to politics, religion, nonlegal institutions and other academic disciplines; it is a set of fixed rules which thanks to the power of the state acquires binding force and remains effective, imposing norms of conduct to individuals, social groups and entire societies; and also a social technique, a system of behaviour regulation endowed with a very special and artificial linguistic form kept at safe distance from vague and fluid colloquial language, in a permanent state of transformation; (2) its corporations and professional guilds of lawmakers, judges, solicitors, legal scholars; (3) its idealised institutions, conceived less by tradition than by force of systematisation; and (4) its process of education oriented towards explanation and evaluation of juridical entities, rules, regulations, statutes etc.
[87] Thus, the global spread of sociological studies of law appears uneven and concentrated, above all, in industrialised nations with democratic political systems.
[90] Legal pluralists define law broadly to include not only the system of courts and judges backed by the coercive power of the state, but also the "non-legal forms of normative ordering".
[105] Humberto Maturana and Francisco Varela originally coined the concept of autopoiesis within theoretical biology to describe the self-reproduction of living cells through self-reference.
He breaks with traditional systems theory of Talcott Parsons and descriptions based on cybernetic feedback loops and structural understandings of self-organisation of the 1960s.
This sociologically radical thesis, which raises the fear of a dehumanised theory of law and society, attempts to highlight the fact that social systems are constituted by communication.
