Socio-legal Scholarship Research Articles

What Socio-Legal Scholars Should Do When There Is Too Much Law to Study

Twenty-one years ago, as the Oxford Centre for Socio-Legal Studies was taking form, I was working on my Ph.D. dissertation in sociology of law. It was a time of intellectual optimism, of hope for collective development of theoretically and empirically grounded understanding of how legal systems really worked. Each new empirical study cast a beam of light into a little-known, often humble province of law's empire, illuminating relationships between the law in action and the law on the books. The learning curve slanted upward sharply. These days, on the other hand, I feel a certain frustration. In the last twenty-one years, socio-legal studies have accomplished a great deal. But we are failing, I feel, to keep up with developments in the legal systems that surround us. The problem is this: in contemporary democracies, positive law, the law on the books, proliferates extremely rapidly so rapidly that it confounds our attempts to find out, in any systematic way, what is actually going on. Like Lewis Carroll's Red Queen, we seem to run faster and faster only to keep from falling further behind. The ecological outlook in the Amazon may be troubled, but the number of species in the legal rainforest keeps multiplying.

From Caliban to CARICOM: Encountering Legality in the Caribbean

Until recently, research in sociolegal studies has tended to ignore the Caribbean region. Sociolegal scholars may have assumed that the Caribbean, like other places outside the United States, more properly deserved the attention of anthropologists than themselves-after all, "they" have "custom" while "we" have "law."' Or, assuming that the colonial project represented an encounter between competing legal systems, sociolegal scholars may have left such studies to anthropologists interested in legal pluralism.2 Caribbeanist anthropologists, who have tended to neglect legal processes in the region, may have assumed that the effects of law in Caribbean societies were self-evident: that slave era law helped maintain the plantation system, that indenture law ensured a pliant labor force after slavery ended, and that law in the colonial and decolonizing Caribbean simply did what its ideology claims it does by mediating disputes, administering

From Caliban to CARICOM: Encountering Legality in the Caribbean

Author(s): Maurer, B | Abstract: Until recently, research in sociolegal studies has tended to ignore the Caribbean region. Sociolegal scholars may have assumed that the Carib, bean, like other places outside the United States, more properly deserved the attention of anthropologists than themselves-after all, have custom while we have law.1 Or, assuming that the colonial project represented an encounter between competing legal systems, sociolegal scholars may have left such studies to anthropologists interested in legal pluralism. 2 Caribbeanist anthropologists, who have tended to neglect legal processes in the region, may have assumed that the effects of law in Caribbean societies were self,evident: that slave era law helped maintain the plantation system, that indenture law ensured a pliant labor force after slavery ended, and that law in the colonial and decolonizing Caribbean simply did what its ideology claims it does by mediating disputes, administering justice, and governing populations. 3 Or they may have considered law to be a concern of Caribbean elites or colonial officials, not the stuff of popular class social and cultural life, and hence unworthy of the thick description that animates Caribbean village ethnography.

From the Editor

At the 1995 Annual Meeting of the Law and Society Association, Boaventura de Sousa Santos delivered an invited plenary address in which he challenged sociolegal scholars to consider the current state of our field. Perhaps, he argued, the paradigms that stand behind the conventions of much current scholarship are inadequate for understanding critical aspects of the law-society relationship. He proposed three metaphors to describe paradigmatic crises and possibilities: the frontier, the baroque, and the South. Santos provoked considerable discussion in the corridors of the Royal York Hotel in Toronto, but a jam-packed meeting program did not offer an opportunity for any sort of public commentary from those who heard him.

Ayres versus Coase: An Attempt to Recover the Issue of Equality in Law and Economics

The principal intellectual impetus behind progressive scholarship in business law' over the last twenty years has been provided by borrowings from economics.2 However, this impetus faces serious resistance from two directions. The first is traditional legal scholarship, which regards these borrowings as inappropriate to legal reasoning and finds comfort in so doing as these borrowings have tended to question formerly unquestionable beliefs. This type of 'intellectual friction'3 is unfortunate but is to be expected.4 Without wishing to deny the political importance of overcoming this friction, I regard it as theoretically uninteresting. More significant is the resistance to the economic analysis of business law mounted by another form of criticism of traditional legal scholarship, 'socio-legal scholarship'. Socio-legal scholarship tends to be associated with broadly left-wing political commitment because the explanations of bourgeois legal institutions which it provides show those institutions to be significantly irrational. I myself accept this in relation to business law since I believe that capitalist markets are poor allocative mechanisms and that the social relationships built upon them tend to be profoundly degrading. From this position, a rejection of law and economics may follow because law and economics scholarship is redolent with sometimes extreme right-wing political

The Making of the Child Support Act of 1991: Policy Making at the Intersection of Law and Social Policy

The legislative process has not traditionally been a central concern of sociolegal scholars, but has remained within the territory of political science. This paper argues that sociologists of law have an important contribution to make to developing the sociology of the legislative process, and that an understanding of legal processes and ways of thinking could enrich the study of public policy from the development of a new policy idea, through the strategy for preparation and, finally, the parliamentary management of a new statute. The child support legislation of 1991 is taken as a example of this process, and is of particular interest because it lies at the intersection of legal and social policy concerns. The Child Support Act removed responsibility for the assessment and enforcement of financial support for children by absent parents from its traditional place within the court system and placed it in an administrative agency closely linked to the Department of Social Security. The laudable aim of strengthening parental responsibility has gone almost unmentioned, and the new system has been widely criticized in the press, leading to protest marches being banned in central London, and even accusations of its contributing to acts of suicide. This paper addresses the question of how the legislation developed, and how some of the differences between legal and social welfare approaches contributed to subsequent criticism of a scheme widely accepted in broad principle but often unacceptable in individual cases. In 1990 divorce, alimony, property settlements, and support for children in the United Kingdom were the province of solicitors, barristers, and judges with perhaps occasional advice from accountants. By the time of writing, four years later, the Lord Chancellor's Department has published a Green Paper, entitled Looking to the Future,1 which takes forward the Law Commission's proposals2 to move to divorce on application over a period of time, to sever the link between lawyers and divorce, and to offer advice and information to couples approaching divorce with the aim of enabling them to manage their own affairs. In cases where a dispute arises about financial

Intertwined Histories: Islamic Law and Western Imperialism

If, as seems possible, Islamic fundamentalism comes to replace as the principal perceived threat to Western reason and democracy, sociolegal scholars may incur a special obligation to analyze the historical processes that constructed the cultural opposition between our supposed rule of law and their imagined religious fanaticism. Law, particularly criminal law but also family law, occupies a central place in the developing opposition between us and them, in contrast to the focus on economic issues that dominated the cultural opposition between communism and the free world. In the coming new world order of nationalist struggles and ethnic confrontations, sociolegal scholars may not be able to remain silent, for if we fail to explore connections between Western and Islamic legal systems, we only contribute to media stereotypes of Islamic law as regressive and feudal and of Islamic political activists as religious fanatics.

Editors' Introduction

This special issue of the Law & Society Review grows out of a unique intellectual encounter: an attempt by the Association to reach beyond its usual geographical horizons and to listen to and engage in conversation with a group of scholars from a region of the world—Southeast Asia—that has received little attention within the law and society community. This conversation is significant for the Association in several ways. First, as our scholarly community becomes more aware of the globalization of our field and the interconnections between our interests and developments in other regions of the world, it behooves us to make new efforts to broaden our understanding of sociolegal issues that are important to the scholars and peoples of Asia, Africa, the Middle East, Latin America, and other world regions. Second, if the Association is to realize its aspirations to internationalize its membership, we should at the same time attempt to understand the scholarly interests and commitments of new colleagues with whom we seek to share our community. We must therefore find ways to listen to the voices of scholars in regions of the world whose work may not yet be familiar to the Review's general readership. Third, the infusion of new perspectives, new research issues, and new voices can enrich the dialogue among sociolegal scholars in many ways. Familiar topics—legal pluralism, the family, crime, the environment, civil rights—can be seen in a new light; and topics that now receive somewhat less attention among North American and European sociolegal scholars—indigenous peoples, law and religion, land rights—emerge as fundamentally important and deserving of renewed research interest.

Victimless Crimes and the "Culture Wars" of the 1990s

This article examines the religious, political, and economic shaping of the "cultural wars" involving victimless crimes in the United States in the 1990s. The articles identifies the genesis of the interest by American sociolegal scholars in the reform of the criminal law in the area of vice in the 1960s, and the nature of their practical and philosophical opposition to government interference in certain private acts. The article then compares the evolution of government policy and public opinion toward each of the particular victimless crimes, describing how each has evolved along a different track. It examines the connections between each of the victimless crimes in contemporary America, as well as the debates surrounding appropriate government policy on each of them. The article examines the cultural importance of attitudes toward the activities contained in these victimless crimes, and the reasons why criminal laws have been brought to bear against them, as well as the reasons and movements to remove the criminal law to reflect and to shape public opinion.

Re-thinking the Study of Criminal Law?

All academic fields have their traditional divisions in ideology, style and subject matter. Legal study is no exception. Indeed, the creation of such divisions is intrinsic to the practice of labelling a 'body of knowledge' as unique and as belonging to one discipline or another. Much has been made and said of the emergence of so-called socio-legal studies and critical legal studies. These rather loose terms (which are frequently used but rarely defined) refer to diverse attempts by legal scholars in the last two or three decades to look beyond the traditional boundaries that have enclosed legal study. Socio-legal scholars wish to place different areas of law into their social contexts, to see the relationship of their fields to other disciplines and to see how their subjects actually affect the realities of social existence. The critical legal scholars are perhaps more distanced from their disciplines and are more concerned with de-constructing them, analysing their constituent parts and determining the philosophical and ideological premises on which they are based. Not surprisingly, these scholars frequently have drawn on critical political perspectives such as Marxism and Feminism. Obviously, the extent of the influence of these enterprises varies enormously between different areas of legal study, different institutions and different individuals. It is surprising, however, that the subject of criminal law as it appears on most law curricula and in most textbooks has, on the whole, remained immune to these interdisciplinary forces. As Lacey et al say, most courses and books on the subject revert quite quickly to 'the complexities of legal doctrine.' Despite the massive increase in knowledge about crime and criminal behaviour this century (particularly in the post-war period), the discipline of criminal law has continued to confine itself to the discussion of legal rules and their interpretation by lawyers. The explosion in criminal justice studies, the diversification of criminological theories and developments in the sociology of deviance have left intact the boundaries of criminal law. Ashworth's Principles of Criminal Law (hereinafter PCL), along with Lacey, Wells and Meure's Reconstructing Criminal Law, provides a notable exception to this tendency. The latter attempts to lay open the political and ideological forces behind

From the Editor

The articles in this issue of the Review offer some unusual insights about the costs, obstacles, and opportunities encountered in sociolegal research. Sociolegal scholarship recognizes and regularly attempts to remove the blinders from doctrinal legal analysis, but it often neglects the blinders that arise from the familiar analytic approaches of its own traditions. Traditional doctrinal legal analysis is criticized for relying on untested assumptions about human behavior, equating law on the books with law in action, and attending only to the public face of law. But there are also limitations in the methodological approaches used in standard empirical analysis, and they too can profoundly distort our images of sociolegal phenomena. The articles in this issue show how careful and skeptical analysis of imperfect data can reduce these distortions and increase our knowledge about legal phenomena.

The End(s) of Critical Empiricism: [Comment

Trubek and Esser's Empiricism' in American Legal Studies is many wonderful things: an intellectual history of the law and society movement framed by an understanding of that movement as a rotation within 20-century legal scholarship,1 a continuation of Trubek's heroic struggle to find a vocabulary of reconciliation between the critical legal studies movement and law and society,2 a useful primer on the relationships between methodological practices and epistemological premises. Most of all, it is an argument for the virtues of critical empiricism as a scholarly practice, while acknowledging the contradictory quality of a program of critical empiricism. The medium of this argument is a critical evaluation of the claims and reflections contained within the writings of the Amherst group of critical empiricists. There is a paradox at the heart of the piece. 'Critical Empiricism' in American Legal Studies is both an effort to persuade a broad audience of sociolegal scholars of the significance and attractiveness of critical empiricism as a scholarly practice and, at the same time, a critique of the claims made by some of critical empiricism's most important proponents. The paradox resolved itself for me through a metaphor. The form of Trubek and Esser's essay resembles the jeremiad of American Puritan theology. The present (the law and society movement of the past 25 years)

The Pull of the Policy Audience

Much research in the sociology of law seeks to play a role informing policymakers about the effects of particular policy initiatives and to participate in debates about how to use law as an instrument of public policy. The paper examines the origins of policy studies in legal realism and describes the way contemporary law and society scholars selectively appropriate aspects of the realist heritage while ignoring others. Particular attention is paid to the ways in which those scholars separate policy from politics and operate as if policy focused research were not itself political. The paper traces the pull of the policy audience and the separation of policy from politics through a close examination of several widely respected examples of sociolegal scholarship. In addition, an effort is made to assess the impact that the desire to speak to the powerful has had in shaping what constitutes acceptable scientific practice and in shaping the domain of study. The paper concludes by arguing that the sociology of law would benefit from an effort to interrogate the basic premises which inform policy debate and that such an interrogation itself requires greater distance from the policy audience.

Cualidades corporativas en el derecho y la sociedad: un caso de los Estados Unidos

La sociedad neoliberal engloba tanto poderes estatales como no estatales, de modo tal que plantea nuevos retos interpretativos a los antropólogos y sociólogos del derecho interesados en la significación social y cultural del derecho. Desarrollo aquí un “estudio de caso” en torno a un dictamen reciente del Tribunal Supremo de los Estados Unidos en el cual esos aspectos figuran entre los temas que contempla. Examino el asunto Comisión de Elecciones Federales contra Ciudadanos Unidos [Citizens United] —un caso que implicaba el derecho de las empresas a invertir dinero en campañas electorales federales. El resultado fue altamente polémico en Estados Unidos, ya que eliminaba antiguas restricciones relativas a la inversión empresarial en la esfera política. Desde un punto de vista etnográfico, sin embargo, la relevancia del dictamen puede estar menos en lo que permite a las corporaciones decir y hacer en el contexto electoral que en el modo en que cualidades peculiares de carácter social, pretendidamente (por el Tribunal) inherentes a las empresas, son valoradas y priorizadas. Sugiero que la multiforme naturaleza de las cualidades de las empresas, tal como las define el Tribunal, apunta al significado potencial del caso para la vida cotidiana que alcanza al sentido de la propia diferenciación entre derecho y sociedad.

Some Notes on Law and Change in North India

The complexity of the situation in an Indian village as regards law and the process of settling disputes can be only briefly catalogued in this paper. To start, let me briefly summarize the social system of a particular region in India. Senapur is a large, multicaste village in Jaunpur District of Eastern Uttar Pradesh, 1 and my remarks, unless otherwise specified, relate to Senapur and the immediately surrounding locality, which is called Dobhi Taluka or Tuppah. Dobhi Taluka is an area of forty square miles with roughly one hundred