Sociology of Law




The sociology of law is one of the oldest specialty fields in the discipline, reflecting the influence of nineteenth century jurists like Sir Henry Maine (1861) on writers of the founding generation like Tonnies, Weber, and Durkheim. Although it has been a less significant area over the last half century, it is currently undergoing a revival, mainly through its contribution to interdisciplinary studies in law and society alongside law, history, political science, anthropology, and social psychology.




Outline


Introduction

In 1963, the U.S. Supreme Court ruled that in all felony trials the accused must be provided with legal counsel. The case of Gideon v. Wainwright (372 U.S. 355, 1963) was widely celebrated as a David and Goliath story of the triumph of the rule of law: An indigent defendant’s handwritten petition had persuaded all nine justices of the Supreme Court to provide a nationwide right to counsel (Lewis 1964). Shortly after Gideon’s victory, Blumberg (1967) published an empirical case study describing the actual work of criminal defense attorneys. That study suggested that Gideon’s case had little relevance to the 90 percent of felony convictions that the prosecution wins not in a courtroom trial but through informal plea bargaining. Moreover, the attorneys to whom the poor were now constitutionally entitled, Blumberg contended, had over the years mutated from trial advocates into bureaucratic cogs whose primary function was to assist the state in processing legal files efficiently.

Blumberg’s deconstruction of the legal myth of the centrality of criminal trials and adversarial counsel exemplifies two central features of the sociology of law. First, that field challenges legal formalism, the philosophy that the law stands above social life, develops according to its own internal logic, and autonomously constrains or facilitates social interaction. A sociology of law becomes essential once the law’s dependence on its social organizational context is recognized (for a defense of legal formalism as a research agenda, see Watson 1985). Blumberg tried to show that the right to legal representation is contingent on the economics of legal services and the networks of dependency that link judges, prosecutors, and defense attorneys in ways that undermine the abstract legal model of the adversarial contest. Second, Blumberg’s case rests on observations of legal practice rather than interpretation of the texts of cases and legislation, the stock-in-trade of conventional legal scholarship. As empirical evidence continued to accumulate, Blumberg’s (1967) conclusions about the origins, causes, and consequences of plea bargaining were qualified or supplanted; later research suggests that plea bargains may be even more adversarial than trials ever were (Feeley 1997), that the relationship between caseload pressure and plea bargaining is complex (Holmes et al. 1992), and that the real role of the courtroom trial may be independent of its frequency of occurrence because out-of-court negotiations are conducted ”in the shadow of the law” (Mnookin and Kornhauser 1979). Blumberg’s study and the later work it inspired illustrate how the sociology of law examines empirical evidence to understand how law is created, enforced, and manipulated in the context of social organization.

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Sociological vs. Jurisprudential Perspectives on Law

The discipline of sociology does not hold a monopoly on efforts to unveil the connections between law and society. In the twentieth century, Roscoe Pound, Jerome Frank, and other legal scholars abandoned legal formalism and created new ways to understand the differences between the ”law in the books” and the ”law in practice” (for a concise overview of both developments, see Hunt 1978). Since the late 1970s, the critical legal studies movement and its variants have emerged as a major competitor to legal formalism in legal research and education (Kelman 1987). For example, Freeman (1978) examines how major Supreme Court decisions on civil rights have shifted the bases for legally defining discrimination from the consequences for the victims to the intentions of the perpetrators. Freeman shows how the law’s emphasis on the actor’s intention constrains the principle of equal protection and perpetuates inequality. While his conclusions are radical, his method is identical to the legal formalists’ practice of textual interpretation (Trubek 1984). Critical legal studies’ doctrinal analysis—its reliance on interpretation of constitutions, statutes, and judgments—has more affinity with literary criticism than with sociological methodologies based on the observation of events. For an example of this distinction, compare Klare (1978) with Wallace et al. (1988). Sociology of law is distinguished more by its methods than by its theories or subject matter.

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Social Origins of Laws

A substantial number of historical case studies (e.g., Hall 1952) have traced the social origins of substantive and procedural law. Sociology enters these investigations with a broader comparative agenda, formulating and assessing general theories of the origin of law. Chambliss’s (1964) analysis of six centuries of vagrancy laws as a ruling-class manipulation of criminal law to control labor was a pioneer of contemporary efforts to puruse this line of investigation. Hagan (1980) provides a representative overview of the subsequent sociological analyses of the origins of alcohol and drug prohibition, sexual psychopathology and prostitution laws, and probation. Humphries and Greenberg (1981) produced one of the few sociological efforts showing the relationships among disparate legal changes and linking those changes to their social bases. They explain the diffusion of juvenile courts, probation, parole, and indeterminate sentences in terms of the shift in the political domination of corporate versus competitive capital during the Progressive era. An alternative approach to the study of the creation and diffusion of legal innovation looks to cultural transmission and organizational linkages rather than to underlying economic or social transformations. Grattet et al. (1998) show, for example, how the diffusion of hate crime legislation appears to be influenced by interstate processes of diffusion rather than by local conditions of the economy and society. Soule and Zylan (1997) similarly explore structural and diffusion factors in the reform of Aid to Families with Dependent Children (AFDC) eligibility rules. In terms of both theory and method, the sociology of law offers a rich body of work that reveals the social foundations of change in the law.

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Social Stratification of Law

The most prominent aspect of social structure in sociological investigations of law is stratification. In his early essay On the Jewish Question, Marx examined how a legal system that made all litigants equal before the law left them unequal in economic resources and social relationships. Much current research has been devoted to finding new evidence showing how formal legal equality reproduces social hierarchies. Galanter (1974) points out how the organizational properties of the legal system reinforce and in some instances generate inequality. Apart from the extralegal resources they bring to the dispute, repeat players (corporations and career criminals), for example, gain knowledge, skills that are not available, and networks denied to one-shot players. Feeley (1979) found that in a misdemeanor court “the process is the punishment”: For the poor, the costs of conviction were minor compared to the costs imposed by the pretrial stages of the process. Shapiro (1990) developed similar insights into the way in which the rules of evidence and organizational priorities of law enforcement bureaucracies create class differences in the punishment of white-collar crime. These studies go beyond the populist notion that the law is like a cobweb that catches the small flies but lets the large bugs go free. Individual resources matter, but sociological research has shown how organizational and institutional contexts shape the manner in which equality before the law results in inequality after the law.

The largest body of research in the field has been devoted to the examination of discrimination in sentencing in criminal courts. Disparities in the type and duration of sanctions vary markedly by class, race, and/or ethnicity, and gender. For example, with 5 percent of the general population, young African-American males account for nearly half the admissions to state prisons. The initial research problem was to determine the extent to which such disparities represent differential involvement in the kinds of crime that lead to more severe sentences or reflect biases in discretionary decision making in the legal system (for a succinct overview of this research, see Walker et al. 1996). The sociologically relevant discoveries of this research include covariation in the extent of discriminatory decision making with social location (see Myers and Talarico 1987).

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Brown v. Board of Education (1954) is perhaps the most celebrated Supreme Court decision of the century. It marked the end of over half a century of the Court’s acceptance of legalized racial segregation as being consistent with the constitutional requirement for equal protection under the law. It is usually the case one associates with the conviction that law—Supreme Court decisions, in particular—powerfully shapes social change. Less widely recognized is the fact that in the decade after Brown, racial segregation in public schools remained virtually unchanged. The sharpest challenge to conventional conceptions of the social impact of law is Rosenberg’s (1991) study of the effect of Supreme Court decisions on school desegregation, abortion, reapportionment, and criminal procedure.

While current controversy centers on Rosenberg’s thesis, several other research programs address the conditions under which legal reforms engineer social change. Burstein (1985), for example, specifies the contingencies that influenced the impact of civil rights legislation on the economic position of minorities. Horney and Spohn (1991) examine the impact of rape reform laws in six jurisdictions on several indicators of prosecution. The measurable impact of legal reform proved to be limited, because of the response of local court organizations to externally imposed change. Heimer (1995) illustrates that similar complications appear when legal changes are imposed on hospital work groups. Organizational responses occasionally facilitate rather than inhibit change. Edelman et al. (1992), for example, found that personnel departments tend to exaggerate the legal risks of noncompliance in equal-opportunity cases as a way to enhance their power within the corporation.

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A public defender explained to Sudnow (1965) that to work in such an office, one has to know the law—and the ropes. Learning about the organizational ropes of courts, police departments, and law offices has been the objective of a large body of contemporary research in the sociology of law.

Albonetti (1987) utilizes organizational theories to explain variation in the decisions of prosecutors to drop cases or reduce charges; apart from the legal evidence, prosecutors’ decisions are shaped by extralegal factors that govern their uncertainty about winning a case at trial. Ofshe and Leo (1997) investigate the coercive persuasion that continues to occur in post-Miranda police interrogations. Police investigators generally follow the letter of the Miranda rules while continuing to practice forms of coercive persuasion that induce most suspects to waive their rights and confess.

Many discoveries about procedure turn on the emergence of informal organizational rules and relationships. Sudnow (1965) found that plea bargains were forged in a common currency of offense seriousness that existed apart from the penal code’s definitions of crimes and punishments.

Emerson (1969) showed how the legally relevant aspects of a juvenile’s offense and career are organizationally transformed into judgments of character, which then become the real bases for determining verdicts and imposing sentences. This work suggests that due process is a variable whose appearance and effects are shaped by organizational contexts (see Dobbin et al. 1988).

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The Role of General Theory in the Sociology of Law

The sociology of law can be distinguished from economics, psychology, and other social science enterprises that have law as their subject matter principally in terms of its integration of its investigations with general theories of social structure. The role of general theory becomes apparent, for example, in comparisons of Japanese and U.S. legal systems that ”explain away Japan by attributing every finding to ‘Japanese uniqueness’ [rather than] treat Japan as a point on a universal continuum” (Miyazawa 1987, p. 239). The case for engaging in the search for such universal continua is made by Black (1976, 1997).

Much current research, however, continues to be guided by one or a combination of the four general theories that initially defined the field. Bentham’s utilitarian philosophy underlies rational choice theories of the behavior of law. Studies of deterrence at both individual and organizational levels of analysis continue to pursue this line of theorizing (see Vaughn 1998 for a summary and critique of organizational analysis). Alternatively, the sociological theories of Marx, Durkheim, and Weber articulate properties of social organization that shape and constrain the choices of persons and firms (for an overview, see Garland 1990). Work in the sociology of law thus not only illuminates the institution of law in unique ways but contributes more fundamentally to basic knowledge about human social organization.

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References:

  1. Albonetti, Celesta A. (1987) ‘‘Prosecutorial Discretion: The Effects of Uncertainty.’’ Law and Society Review 21:291–313.
  2. Black, Donald (1976) The Behavior of Law. New York: Academic Press.
  3. Black, Donald (1997) The Social Structure of Right and Wrong. Revised edition. San Diego: Academic Press.
  4. Blumberg, Abraham S. (1967) ‘‘The Practice of Law as a Confidence Game: Organization Cooptation of a Profession.’’ Law and Society Review 1:15–39.
  5. Burstein, Paul (1985) Discrimination, Jobs and Politics: The Struggle for Equal Employment Opportunity in the U.S. Since the New Deal. Chicago: University of Chicago Press.
  6. Chambliss, William J. (1964) ‘‘A Sociological Analysis of the Law of Vagrancy.’’ Social Problems 12:67–77.
  7. Dobbin, Frank R., Lauren Edelman, John W. Myer, W. Richard Scott, and Ann Swindler (1988) ‘‘The Expansion of Due Process in Organizations.’’ In Lynne G. Zucker, ed., Institutional Patterns and Organizations: Culture and Environment. Cambridge, Mass.: Ballinger.
  8. Edelman, Lauren B., Steven E. Abraham, and Howard S. Erlanger (1992) ‘‘Professional Construction of Law: The Inflated Threat of Wrongful Discharge.’’ Law and Society Review 26:47–83.
  9. Emerson, Robert M. (1969) Judging Delinquents: Context and Process in Juvenile Court. Chicago: Aldine.
  10. Feeley, Malcolm M. (1979) The Process Is the Punishment: Handling Cases in a Lower Court. New York: Russell Sage Foundation.
  11. Feeley, Malcolm M. (1997) ‘‘Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining.’’ Israel Law Review 31:183–222.
  12. Freeman, Alan D. (1978) ‘‘Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine.’’ Minnesota Law Review 62:1049–1119.
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  15. Grattet, Ryken, Valerie Jenness, and Theodore R. Curry (1998) ‘‘The Homogenization and Differentiation of Hate Crime Law in the United States, 1978 to 1995: Innovation and Diffusion in the Criminalization of Bigotry.’’ American Sociological Review 63:286–307.
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  18. Heimer, Carol A. (1995) ‘‘Explaining Variation in the Impact of Law: Organizations, Institutions, and Professions.’’ Studies in Law, Politics and Society 15:29–59.
  19. Holmes, Malcom D., Howard C. Daudistel, and William A. Taggart (1992) ‘‘Plea Bargaining Policy and State District Court Caseloads: An Interrupted Time Series Analysis.’’ Law and Society Review 26:139–159.
  20. Horney, Julie, and Cassia Spohn (1991) ‘‘Rape Law Reform and Instrumental Change in Six Urban Jurisdictions.’’ Law and Society Review 25:117–154.
  21. Humphries, Drew, and David Greenberg (1981) ‘‘The Dialectics of Crime Control.’’ In David Greenberg, ed., Crime and Capitalism Palo Alto, Calif.: Mayfield.
  22. Hunt, Alan (1978) The Sociological Movement in Law. Philadelphia: Temple University Press.
  23. Kelman, Mark (1987) A Guide to Critical Legal Studies. Cambridge, Mass.: Harvard University Press.
  24. Klare, Karl E. (1978) ‘‘Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941.’’ Minnesota Law Review 62:265–339.
  25. Lewis, Anthony (1964) Gideon’s Trumpet. New York: Random House.
  26. Miyazawa, Setsuo (1987) ‘‘Taking Kawashima Seriously: A Review of Japanese Research on Japanese Legal Consciousness and Disputing Behavior.’’ Law and Society Review 21:219–241.
  27. Mnookin, Robert H., and Lewis Kornhauser (1979) ‘‘Bargaining in the Shadow of the Law: The Case of Divorce.’’ Yale Law Journal 88:950–997.
  28. Myers, Martha, and Susette M. Talarico (1987) The Social Contexts of Criminal Sentencing. New York: Springer-Verlag.
  29. Ofshe, Richard J., and Richard A. Leo (1997) ‘‘The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions.’’ Studies in Law, Politics and Society 16:189–251.
  30. Rosenberg, Gerald N. (1991) The Hollow Hope: Can Courts Bring about Social Change? Chicago: University of Chicago Press.
  31. Shapiro, Susan (1990) ‘‘Collaring the Crime, Not the Criminal: Reconsidering the Concept of White Collar Crime.’’ American Sociological Review 55:346–365.
  32. Soule, Sarah A., and Yvonne Zylan (1997) ‘‘Runaway Train?: The Diffusion of State-Level Reform in ADC/AFDC Eligibility Requirements, 1950–1967.’’ American Journal of Sociology 103:733–762.
  33. Sudnow, David (1965) ‘‘Normal Crimes: Sociological Features of the Penal Code in a Public Defender’s Office.’’ Social Problems 12:255–276.
  34. Trubek, David (1984) ‘‘Where the Action Is: Critical Legal Studies and Empiricism.’’ Stanford Law Review 36:575–622.
  35. Vaughn, Dianne (1998) ‘‘Rational Choice, Situated Action, and the Social Control of Organizations.’’ Law and Society Review 32:23–61.
  36. Walker, Samuel, Cassia Spohn, and Miriam DeLorme (1996) The Color of Justice: Race, Ethnicity and Crime in America. Belmont, Calif.: Wadsworth.
  37. Wallace, Michael, Beth A. Rubin, and Brian T. Smith (1988) ‘‘American Labor Law: Its Impact on Workingclass Militancy, 1901–1980.’’ Social Science History 12:1–29.
  38. Watson, Alan (1985) The Evolution of Law. Baltimore: Johns Hopkins University Press.

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