The Relation of Law and Society

The sociological school, above all Roscoe Pound. Law is social engineering: the task of the legal order is to satisfy as many social wants as possible with the least sacrifice, and Pound's theory of interests, classified as individual, public and social, is the scheme by which competing claims are to be weighed. Law is therefore an instrument to be used purposively rather than a growth to be observed.

Eugen Ehrlich and the living law, met in Module I. The centre of gravity of legal development lies not in legislation, juristic science or judicial decision, but in society itself: the rules that actually govern behaviour, in families, associations and trades, are the living law, and the state's law is only a part of it and frequently the smaller part. This is the most sociological of the positions, and it is the one that generates the research question of [Legal Pluralism].

The positivist school, Austin and after him Kelsen, in contrast holds that the validity of law is a question about its source rather than about its social effect or moral content. It is not a rival account of the relation between law and society so much as a refusal to treat that relation as a question about validity, and saying so is more accurate than presenting it as an opposing theory.

Marxist theory, from [Marx: Historical and Dialectical Materialism]: law belongs to the superstructure, resting on the economic base, and serves the interests of the class that owns the means of production.

Weber, from [Weber: Power and Authority]: the distinctive feature of modern law is its rationality, that is, its generality, its systematic form and its predictability, and legal-rational authority is the form of domination proper to a modern state.

Durkheim, from [Durkheim: Division of Labour and Social Solidarity]: law is the visible index of solidarity, and its type changes with the type of solidarity, repressive law giving way to restitutive law as the division of labour advances.

The functions of law in a society

Bringing the schools together into a list, which is what an examiner asks for.

1. Social control, defining and sanctioning deviance.
2. Dispute settlement, which is [Accommodation] in its institutional form.
3. Social change, the next chapter.
4. Maintenance of order and security, without which nothing else is possible.
5. Protection of expectations, so that people can plan and transact. This is the function Weber identified as a condition of capitalism in [Social Determinants of Economic Development].
6. Allocation of resources and of authority, through property, taxation and constitutional arrangement.
7. Legitimation, since law makes an arrangement appear rightful, which the conflict perspective reads as ideology.
8. Expression of shared values, Durkheim's function of punishment.
9. Protection of the weak, which is the function most conspicuous in modern welfare and labour legislation and least present in custom.

Where law and society diverge

The interesting cases, and the ones research is actually about.

The gap between law in the books and law in action. Roscoe Pound's phrase, and the founding observation of the sociology of law: what the statute provides and what happens are different things, and the difference is a subject for investigation rather than a scandal to be denounced.

Non-enforcement. Rules that stand unenforced for decades, as much of the prohibition of dowry and of child marriage did.

Evasion. Formal compliance with substantive breach, which is what most regulation actually meets.

Selective enforcement, from [The Conflict Perspective].

Ignorance. A right unknown to its holder is not a right in any practical sense, which is why legal awareness is a subject of research and of policy.

Access. The cost, distance, delay and language of the legal system decide who can use it, so formal equality before the law coexists with unequal capacity to invoke it.

Legal pluralism, where the state's law is one order among several, treated in its own chapter.

A worked example

Two brothers dispute their father's land.

Law as product: the succession rules applied are the codified version of what were once customs of that community, altered by legislation, notably the amendment of 2005 making daughters coparceners.

Law as one control among many: the dispute will most likely be settled by elders, by the family, or by a compromise, and the statutory rules operate in the background as a threat and a measure rather than as a decision.

Law as mirror: the sister's share exists in law and is very often not claimed, and the gap between the two is an accurate reflection of the society, as [Property] shows.

Law as agent of change: the 2005 amendment altered what the sister could demand, and over time it alters what she is expected to accept.

Living law: the arrangement the family actually adopts, that the sister relinquishes and receives something at her daughter's marriage, is a rule of the living law of that community. It is not in any statute and it governs the case.

What this does NOT mean

Law is not merely a reflection of society. It has its own institutions, its own techniques, its own professionals and its own logic, and it can act against prevailing opinion.

Society is not merely the product of law. Most social order is produced without law and would survive its absence.

The relation is not one of simple causation in either direction, and any account that makes it so is wrong. It is a relation of mutual influence in which neither term is prior.

Quick revision

1. Four propositions: law is a product of society; an instrument of social control; a mirror of society; and an agent of change.
2. Savigny and the historical school: law grows from the Volksgeist; scepticism about legislation and transplant. Weakness: cannot explain successful deliberate reform.
3. Pound and the sociological school: law as social engineering, satisfying the most wants with the least sacrifice; the theory of interests, individual, public and social.
4. Ehrlich: the centre of gravity of legal development lies in society itself; the living law.
5. Marx: law is superstructure serving the dominant class. Weber: modern law is rational and predictable. Durkheim: law is the visible index of solidarity.
6. Functions: social control, dispute settlement, social change, order, protection of expectations, allocation, legitimation, expression of values, protection of the weak.
7. Divergences: the gap between law in the books and law in action (Pound), non-enforcement, evasion, selective enforcement, ignorance, access, and legal pluralism.

Test yourself

1. State the relation between law and society in four propositions. Law is a product of society, its content drawn from the society's customs, morals and distribution of power, which is why law differs between societies and over time. It is an instrument of social control, and the smallest of several. It is a mirror of society, borrowing its categories from social life and recording what the society has settled and what it still contests. And it is an agent of change, capable of altering the arrangements from which it came. No account that takes only one of the four is adequate.

2. What did Savigny hold, and what is the objection to it? That law is not made but grows, like language, out of the spirit and history of a people, the Volksgeist, so that legislation is at best a codification of what already exists and a legal system cannot be transplanted from one society to another without regard to either. The objection is that deliberate legal reform manifestly occurs and sometimes succeeds, and that whole legal systems have in fact been received by societies that did not produce them, neither of which the theory can accommodate.

3. Explain Pound's social engineering and Ehrlich's living law. Pound treated law as social engineering: the legal order's task is to satisfy as many social wants as possible with the least sacrifice of other wants, and his theory of interests, classified as individual, public and social, provides the scheme for weighing competing claims. Ehrlich held that the centre of gravity of legal development lies not in legislation, juristic science or judicial decision but in society itself, and that the rules which actually govern conduct in families, associations and trades are the living law, of which the state's law is only a part and often the smaller part.

4. What is the gap between law in the books and law in action? Pound's phrase for the difference between what the legal materials provide and what actually happens: rules that stand unenforced, rules complied with in form and evaded in substance, enforcement that follows social lines rather than the seriousness of the conduct, rights unknown to their holders, and a system whose cost, distance and language decide who can use it. The sociology of law treats that gap as its subject matter, to be measured and explained, rather than as a scandal to be deplored.

5. Why is it wrong to say either that law reflects society or that law shapes society? Because each is half of a relation of mutual influence in which neither term is prior. Law takes its content from social custom, interest and power, so it cannot be understood without the society; and it has its own institutions, professionals and techniques, and can act against prevailing opinion, so the society cannot be understood as producing it mechanically. Most social order, moreover, is produced without law at all, so law is neither the source of society nor merely its shadow.