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Law in Modern Society$

Denis Galligan

Print publication date: 2006

Print ISBN-13: 9780199291830

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199291830.001.0001

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Approaches to Law in Society

Approaches to Law in Society

Chapter:
(p.27) 2 Approaches to Law in Society
Source:
Law in Modern Society
Author(s):

D. J. GALLIGAN

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199291830.003.0003

Abstract and Keywords

There are several ways of examining law in society. Such disciplinary approaches would include a historical approach, a political science approach, an economic approach, and approaches from other fields of social science like sociology, psychology, anthropology. Each of these approaches has its own aims and methods. This book uses an approach that is located within socio-legal studies or law-and-society, and this approach aims to understand law as a part of society as it has a distinct social form while it becomes interconnected with other social forms. The method for this approach consist of identifying the features of a legal order that are important in determining social facts that affect the actions of citizens and officials and examining the implications and meanings associated with these features.

Keywords:   law-and-society, socio-legal studies, law in society, social facts

2.1 Understanding Law in Society

There are different ways of studying law in society, each with its own aims and methods. An historical approach examines the relations between law and events, showing how law has been used at different times for different purposes, how it connects with interests and classes, with political ends and social movements. Notable studies include the early development of modern law in medieval Europe,1 the use of criminal law in England in the eighteenth century in protecting property,2 and the transformation of American law in the eighteenth and nineteenth centuries to cope with the rapid advance of business enterprise.3 Another approach has its setting in political science where the centre of attention is the role of legal institutions, especially courts, legislators, and administrative bodies.4 Here, the object is to understand how legal institutions fit within the political system, how they work in practice, and how they relate to other political institutions. Economics provides a third approach where, again, its methods and theories are applied to laws and legal institutions to determine how they fit within the economic order and the consequences.5 The list could go on to include other disciplinary approaches, especially sociology, psychology, and anthropology, the point being that since law is a part of society it is of interest to all forms of social enquiry. Social enquiry has become divided into specialized disciplines, each with its aims, theoretical framework, and methods. The prospect of a unified social science, a grand (p.28) and all-encompassing framework of enquiry, shows little sign of realization.6

The approach I take here, rather than being a strict application of any one of the disciplines mentioned, is located within socio-legal studies or law-and-society (nothing turning on the name), which now has its own disciplinary tradition. The object of study of this tradition is law, the aim being to understand it as part of society, having a distinct social form and intersecting with other social forms. Its methods are eclectic rather than pure, with sociology and social theory its main sources of ideas and approaches, while anthropology and political science are constantly invoked. The law-and-society framework itself has room for a range of approaches usually identified with Durkheim,7 Weber,8 and Luhmann, as well as numerous more recent writers. Both Durkheim and Weber, two of the towering figures of modern sociology, wrote extensively on law and are a natural bridge to law-and-society, a study of which could hardly escape being influenced by both. Niklas Luhmann, another sociologist and lawyer, dedicated himself more directly to law in society and poses a serious challenge to conventional approaches.9 His influence is felt and his claims must be considered. Without falling wholly under the allure of any one of these figures, ample reference is made to each in proposing an approach to guide us through the following chapters.

Social enquiry of any kind requires the answering of three main questions: first, what is the subject of study; secondly, what are its aims; and thirdly, how is the study to be conducted. The study of law in society is no exception so that in answering these questions the main features of my approach will emerge.

2.2 The Subject of Study in Law-and-Society

To say that the subject of study is law in society may be enough to distinguish it from the jurist’s concern with doctrine and the legal (p.29) philosopher’s with general concepts and theories, but hardly conveys a clear idea of what it is itself. In order to make that more precise, three lines of approach are identified and their merits assessed. One focuses on the interaction between law and other social formations, a second on both the character of law and its interaction, while a third rejects the relevance of interaction and concentrates on the social character of law itself. The first is associated with much of the empirical research conducted under the heading of socio-legal studies, the third with Luhmann and his insistence that law is a distinct social formation that should be kept separate from its environment; the second is the approach adopted here.

With regard to the first, the focus is on the interaction between law and other social formations where the law itself is taken as a fairly unproblematic constant, so that the kinds of issues arising are: how do people regard law, what happens when they come into contact with it, how they use it, and what happens when they get embroiled in its processes. A good example is a pioneering study, conducted by my own institution, the Oxford Centre for Socio-Legal Studies in its early years, of what happens to the victims of accidents.10 The study shows how few victims seek or obtain compensation, and explains why; we learn about such matters as what kinds of injuries people suffer, the different types of compensation, why victims choose one rather than another type, and the character of the legal schemes. The study concludes with recommendations for changes and improvements in policy. Other studies of the interaction between law and society go beyond this to include such matters as why people make complaints11 and what remedies they expect, whether legal representation before tribunals makes a difference to the outcome,12 and what happens to children and couples after divorce. Another area of research is the implementation of law by officials, including such issues as how they interpret and exercise their powers, whether they apply the law faithfully or tend to assume discretion to depart from it; what factors influence their decisions; and what kinds of relations are formed with those subject to their powers. The study of decision-making by officials is often broadened to include the nature and workings of administrative and judicial bodies, the objective being to understand how institutional and organizational factors influence their practical operation. The other side of implementation by officials is compliance by private parties or other (p.30) officials, which gives rise to a set of similar issues as to how they receive and deal with law.13 The relations between law and informal social norms opens up a different line of research, which raises questions such as the conditions under which informal norms are inadequate in regulating social issues and which ones are strengthened or replaced by law. Alternatively, under what conditions are laws modified by or displaced by informal norms, whether by the police, psychiatrists, or a community of farmers. A final area of enquiry to mention is the effect law has in changing or redirecting behaviour, whether of individual persons, associations, or officials. Among the questions here, the principal one is under what conditions is law effective in bringing about social change. Considering how often law is used with that objective, this is of major contemporary interest.

These are the main areas that have come to typify empirical socio-legal research. Of course there are others and it would be wrong to suggest they all have the same aims, or indeed that the aims for which they are conducted are always clear. Nevertheless, taken as a whole, they represent a general approach to law-and-society whose main subject is law’s interaction with its social environment. Early studies were directed at showing the gap between the legal ideal and the reality, between the law providing a system of compensation for the victims of accidents and the fact that so few people benefit from it. Later studies matured into a concern, not so much with the gap between idea and reality, as with the social processes set in train when a set of laws is launched to control such matters as environmental pollution or the safety of workers.14 Laws for the purpose of this approach normally take the form of legislative schemes directed at achieving certain objectives, but research extends to include judicial decisions, especially those of the higher courts aimed at outlawing such practices as racial segregation in schools,15 or changing the practices of officials through judicial review.16 As research has developed and its methods become more refined, knowledge and understanding of the interaction between law and its social environment has become quite (p.31) advanced, although its value to policy-makers has not yet been fully realized.

The suggestion that the main concern of this research has been the interaction of law with other social aspects, rather than the law itself, in no way diminishes its importance; nor should it be taken to mean that it has no significance for an understanding of law. On the contrary, for anyone with an interest in law’s social role, the body of socio-legal research provides the empirical basis on which generalization about the nature of law can be based; at the same time, that is not the aim of this approach nor has it been much used for that purpose. Once one embarks on a course of generalization as to the character of law, the frame of reference subtly but significantly changes; law is no longer taken for granted as relatively fixed and unproblematic but becomes itself the object of study. The frame of reference now includes both the law and its interaction with society, which go well together, since the analysis of law as a distinct social formation, while of interest and value in itself, also affects its interaction with other social formations. We should think of law as an edifice not unlike a house which, like a house, takes different forms and shapes; and just as the form or shape of a house affects how it is used, the same goes for law.

The basis of this approach, which guides my present study, is that the subject of law-and-society is both the law and its interaction with society. The study of law as a social formation means identifying its elements and examining how they come together to form a distinct phenomenon as outlined in the first chapter. Using this approach, it means following Hart’s idea of law as a system of social rules accepted by officials and others as binding on them, and then developing the idea further. More needs to be known about social rules and especially legal rules, about the attitudes of officials and citizens to legal rules, and what it means to accept them as guides to behaviour. The connections legal rules have with coercion and particular functions need to be considered, as does the idea that legal rules are in some way different from other social rules. From these lines of enquiry, more details of which are given in the previous chapter, a general picture of law emerges as a social formation, or, to continue the analogy with a building, we should have a good idea of the legal edifice. Within that edifice, different architectural designs are possible, depending on the nature of the rules and their objectives, the procedures and remedies, and the way officials are organized. Law as a social formation, therefore, has two levels of analysis, one the general meaning, the other the specific designs within it. Following the analysis of (p.32) law as a social formation, its interaction with other social formations can be considered. The process of interaction has two aspects: one refers to the way various social elements combine and interact in the very formation of law, the other to the way specific sets of laws, specific designs, encounter the social environment.

One reaction could be that this approach lacks clarity and precision. Law as one social formation merges into others, leaving unclear where law ends and others begin; it is also unclear how law can be distinct and yet be intertwined with other aspects of society. To anyone with an eye for conceptual clarity, this must seem unwelcome confusion, prompting the search for a more precise concept of law, one sharply separable from other social forms. That, roughly, is the third approach to defining the subject of law-and-society; it is associated with Luhmann and is a frontal challenge to the approach here. The opposite reaction would be to question the idea that law really is a distinct social formation, to accept that legal rules are just one set of rules among several and proceed from there. Neither reaction is persuasive enough to depose the approach proposed here. The idea that law can be strictly separated from its social environment has a superficial attraction that dissolves on scrutiny, as we shall see shortly. Moreover, it is hard to see why law’s social environment, its interaction with society, should be excluded from the study of law in society. The alternative, the idea of law being one set of rules and practices among several, means forsaking any notion of its distinctiveness; that would be unwarranted neglect of a social formation that is not only distinctive but of considerable importance. It does not have the conceptual purity of analytical accounts such as Kelsen’s and possibly even Hart’s; but imprecision of definition and the ragged edges of practice should not be mistaken for non-existence.

2.3 The Aims of Law-and-Society

Among social theorists, it is recognized that how one goes about studying any aspect of society depends on both the subject of study and the aims and purposes in conducting it. The idea that only one method is available, and that it should imitate the method of natural science, has long passed. Different methods are now acknowledged, although disagreement prevails as to their respective merits; also acknowledged is that the choice of method is inseparable from the researcher’s standpoint. The subject of study here has been identified, what then are my aims in studying it? The answer at the most general level is plain: law is a major force in modern (p.33) societies; it directs and regulates social relations; it dominates other systems of social control and has a mighty administrative machinery to enforce its dictates. It contributes to the life of communities and individuals, in many ways and, despite a capacity for misuse, it is regarded by most not just as a necessary part of a tolerable society but essential to the realization of valued social goods. That is self-evidently a powerful motive for wanting to know more about it, to understand its character, and how it works. The general aim, then, an aim surely sufficient in itself, is to understand this social phenomenon. It becomes more precisely focused in modern societies whose legal orders have qualities differentiating them from legal orders in general. The better knowledge and understanding of those qualities is of interest and importance in itself, but that is not all: better understanding should help in knowing what sustains them for after all they are worth sustaining. And if I am right in claiming that modern legal orders run counter to the forces of natural social formations, even of normal legal systems, then sustaining them is not easy.

Consideration of the general aim leads to others more specific. Law is of interest because it directs and influences people’s actions. How it does so, the conditions under which it is effective, and why it often fails, add a point of focus that again resonates through modern societies, since they depend on a high level of respect for law and compliance with it. Hart confines that level of respect to officials, leaving the citizens to obey; my claim is that the achievements of modern societies depend not only on officials but also on citizens, from whom a high level of acceptance as well as obedience is necessary. At the same time, officials have a central role in making, applying, and enforcing the law. How their role is carried out warrants close study, for again more is expected from them in modern societies than pre-modern, and in doing so creates in them points of deep tension. They have the vast powers that are needed to achieve the goals of modern society, especially in regulating social relations contrary to their natural and spontaneous development. Simultaneously, officials have to be severely constrained in the use of their powers. The inherent tension, in turn, makes modern legal orders fragile and vulnerable to collapse. A specific aspect of the general aim concerns the way citizens and officials view the law and deal with it, not only as individuals but as members of associations and organizations. Whenever two or more people have common interests or pursuits, social relations are created among them. Social relations both encourage and are strengthened by the evolution of conventions and understandings, which in turn guide individuals in their actions. Each of us occupies many such sets of social relations and the (p.34) social spheres developing around them, and it is from those standpoints that attitudes towards law are shaped and actions guided. These aims are already ambitious and to achieve them to any significant degree is a tall order. There is, nevertheless, one further ambition and that is to find, explain, and defend a general framework that transcends other more particular aims for studying law in society.

2.4 Four Methodological Principles

Now that the subject of study in law-and-society and its aims have been identified, let us consider how it should be done, what methods should be used. Considering that the subject is both law as a social formation and its interaction with other social formations, a description of the main features of both is an obvious starting point. If law is a distinct social formation then it is reasonable to assume certain features that both identify it and distinguish it from other formations. The idea that we should begin by mapping the social world of law ‘as accurately and completely as possible’ has plain appeal.17 Mapping means identifying and describing its prominent features. Hart’s description of a municipal legal system is a good example of mapping. The main features are singled out, analyzed, and described, and how they combine is explained. The attractions of mapping as a method of explanation are slightly marred by the concern that social formations may not be quite like natural terrains, their features not so obvious and objective as mountains, rivers, and deserts. The added concern, that drawing-up a real map is not itself a straightforward process but dependent to some extent on the cartographer’s aims, leads back to the bridge between aims and methods, and why it is important. The bridge reminds us that explaining social phenomena is not a mechanical process conducted by robots; it depends on the observer having specific aims and then classifying and understanding the social world in accordance with them. Philosophers still debate the extent to which the social researcher is or can be a spectator in describing the essential features of an external reality. Whatever the outcome of the debate, it is surely uncontroversial that we bring to any social enquiry a set of background assumptions and values, and a set of issues for which we seek clarification.

But where to start? Legal systems have many parts, some more central (p.35) than others; how then is the enquiry limited from among all the possible parts to those that are both important and manageable? Since our main aim in studying law in society is to understand how law works as a social formation, how it affects people’s actions, we have a distinct point of view from which to analyze the data and draw the map. The issue then is: what features of law are relevant to its affecting the behaviour of citizens and officials? Durkheim’s method in answering a similar question was to develop the notion of social facts. Despite social facts being seriously out of fashion, his method is useful in two ways. First, social facts should be taken as those fairly easily identifiable features of the landscape, the social equivalent of rivers, mountains, and bridges. Secondly, the social facts relevant to our enquiry are those affecting people’s actions. Durkheim defines social facts in this way: ‘When I fulfill my obligations as brother, husband, or citizen, when I execute my contracts, I perform duties which are defined, externally to myself and my acts, in law and in custom. Even if…I feel their reality subjectively, such reality is still objective…’.18 In other words, social facts ‘are external to individuals and exercise coercive power over them’.19 They are not to be confused with the psychological states of individuals. The general approach serves my purposes well by limiting the mapping of law to those aspects that influence, or are expected to influence, behaviour. For social facts, I substitute the term social formations on the grounds that the latter have softer edges, allowing that they are themselves formed from several ingredients and are perhaps less objective than Durkheim proposes. On this approach, the elements of a legal order relevant to social enquiry are those social formations that are characteristically legal and likely to influence the actions of citizens and officials. Included among them must be the matters identified by Hart, such as rules of different kinds, officials, and sanctions. They extend to the social relations at the foundation of law, and they include the foundation and shape of legal orders as a whole, and the sets of laws within them. The method of approach, then, is to map those social formations on the canvas of human actions.

The mapping of a legal order is an important first step in the methods of law-and-society; it is the first methodological principle. It is not, however, enough. Social formations are external to individuals and exert influence on them; but they do not tell us how individuals respond. They explain the external part of the legal landscape, but not how people (p.36) regard social formations and deal with them. The example of a rule again serves us well. Legal rules are part of the external landscape and place social pressure on people to comply with them; how they then respond to the rule opens up another area of social activity. Hart enters into this social world and develops the idea of an internal point of view, of acceptance of the rule as a binding standard, which is different from another point of view where the rule is a sign that sanctions may be imposed. Hart is known to have read Weber and appears to have followed closely his approach to social explanation. Weber defines social explanation as ‘the science concerning itself with the interpretive understanding of social action and thereby with a causal explanation of its course and consequences’.20 By social action, Weber meant the (subjective) meaning a person attaches to his behaviour. Weber considered that social activity consists of the actions of individual persons who pursue purposes and have reasons for acting in one way rather than another.21 If we wish to understand society, it is to the actions of individuals that we must look. And then we have the second methodological principle where the importance of this method for law-and-society is plain: since law aims at influencing actions, how citizens and officials regard legal rules, the meanings they attribute to them, and how they then deal with them are vital pieces of the legal landscape. With a major qualification: the point is not the actions of single individuals or their psychology, but the patterns that can be detected in the actions of individuals.22

The methods for studying law in society, so far, consist of two principles: first identifying and describing features of a legal order that can be identified as relevant to the actions of citizens and officials, and secondly, examining the meanings attributed to such features by citizens and officials, and the actions that follow. There is, however, another aspect of behaviour towards law that points to the need for an additional method of analysis. Both Hart and Weber have an image of persons, whether citizens or officials, who face the world as individuals and make reasoned choices as to their actions. The reality is different, for while individual persons make choices in deciding and acting, each does so from the standpoint of social spheres, which consist of conventions and understandings as to (p.37) how to act in different circumstances. As the account in Chapter 6 shows, the various social spheres each of us occupies have a major role in guiding and constraining our actions. They greatly reduce the range of choices and the extent to which our decisions are genuinely based on wide-ranging considerations. Their relevance to law lies in the fact that the way citizens and individuals approach and deal with law is significantly influenced by them. The suggestion is not that decisions are determined in advance; it is the more subtle claim that each of us is socialized to some extent, and often to a substantial extent, into accepting as right, reasonable, and normal certain ways of thinking and acting. Once having internalized such conventions and understandings, we act according to them, making our decisions and judgments within their boundaries and being guided by their substantive content. The result is a third methodological principle: law-and-society must move beyond the image of the existential person to the socialized, which means focusing on the character of social spheres and their interaction with law.

These three methodological principles taken together constitute a powerful approach to law in society. It is an approach that concentrates on analyzing and describing legal orders and the way officials and citizens respond to them. Although it might be wise to stop here, there is cause for adding a fourth principle of a different character. Hart speaks for many when he insists on a distinction between how the world (here the legal world) is in reality and how we would like it to be ideally. Law is separated from morals on that basis. At the same time, not all who seek to understand law or law in society limit themselves in that way. A different and equally justifiable approach, one adopted by Dworkin,23 Finnis,24 Rawls25 and Habermas26 shares with Hart the aim of understanding law, but adds the further aim of positioning law in a moral context, of wishing to understand how law relates to the wider principles and purposes of human associations. Although often clothed in the language of law’s functions, of asking what is law for, the aim, however expressed, is to connect law to both its moral and its pragmatic foundations. In making the distinction between relatively developed legal systems in general and a narrower category designated as modern, I have unavoidably made a selection on grounds not fully articulated but necessarily at some level evaluative, reflecting a point of view, a preference for one set of law’s (p.38) qualities over other possible sets. The very process of isolating some features of law as worthy of special attention is itself to make a judgment about the place and purpose of law in contemporary societies. And if to that is added, what must become obvious even if not explicitly stated, that modern legal orders have intrinsic features that are desirable and are conducive to attaining social goods of plain merit, then the scope of the enquiry has broadened. A fourth methodological principle should, therefore, be added, its focus being on developing the notion of a modern legal order, extolling its advantages, examining the social conditions sustaining it, and understanding the risks inherent in it. On the basis of these four methodological principles, the present study of law in society proceeds.

2.5 Law as a Closed System

Having outlined the four methodological principles for the study of law in society, we must now deal with the alternative approach proposed by Niklas Luhmann. His claim, simply put, is that the proper objects of law-and-society are, first, the law itself, which is a distinct social system within the larger society, and secondly, the social conditions which make law possible and sustain it. The first idea occupies most of his last major book, Law as a Social System, his claim being that law should be understood, not in relation to other aspects of society, but as a distinct social system itself.27 His view is based on several ideas that need briefly to be explained. One is the need to separate law from its surrounding environment, meaning the society around it. How law interacts with its environment is, according to Luhmann, irrelevant to understanding it as a social system. Law is recognized and defined by its separation and its differences from other social formations, not its interaction with them. Another idea is that the real question for law-and-society is how law as a distinct and separate social sub-system is possible and what its elements are.28 A final claim is that legal systems are closed or autopoeitic systems, which means having their own internal basis for deciding what is law, and for classifying actions as legal or illegal. These ‘operations’ as they are called, cannot communicate with or be directly influenced by factors external to law. Just as you cannot talk to a ringing telephone and tell it to stop, but must enter into its internal electronic network in order to do so, similarly external society cannot communicate directly with law, so that social matters have to be translated into legal forms before they can enter (p.39) the legal system. Both the telephone and the law have their own systems of internal communications that are closed to external factors. Law’s operations consist of a binary code that determines whether a matter is legal or illegal, and does so according to its own internal processes.

Luhmann’s approach to law-and-society is complex and difficult but merits close consideration. My purpose here is to single out several issues that arise within his approach, and then show why I am not adopting it in full, although relying from time to time on aspects of it. The first matter to consider is what it would mean to take his approach and what the consequences would be. This has two aspects: one concerns the nature of law, the other the relationship between law and society. Concerning the nature of law, Luhmann contends that accounts such as Hart’s have failed to provide a basis for identifying law, and have failed because the distinctiveness – or closure – of law cannot be explained as a system of rules. The reason is that the ultimate rule, the rule of recognition, cannot itself be valid but depends on the attitudes of officials. This means that it is subjective to officials and inherently unstable, as opposed to being objectively observable and verifiable.29 Instead of focusing on rules, we are asked to think of law as operations and communications that are internal to the system and objectively observable, the object of which is to determine whether a matter is legal or illegal. The unique feature of a legal system is that it translates all kinds of social considerations into the language of law, which is then used to decide specific issues as legal or illegal. This feature of law is an observable social fact that is not dependent on the subjective attitudes of officials, unlike an analysis based on rules. The crucial point is that features and operations internal to law determine its closure and distinctiveness. So, the first consequence of this approach is the need to reformulate the character of a legal system. What then are the consequences for law-and-society? Since a legal system has been described as separate from other social aspects with no direct communication between the two, it follows that a law-and-society analysis would concern itself solely with the internal workings of the legal system, and hence rely on only the first methodological principle. The social environment around law is said to be irrelevant to law-and-society, so that how society affects law, or what influence law has on society may be worthwhile questions but they are not questions for the sociology of law. The one issue that does reach outside the law itself and raises wider social questions is: what social conditions make a legal system possible (p.40) and sustain it? This is quite different from asking how legal rules interact with society.

Having seen what it would mean to take this approach to law and society, we should now consider the second main issue: why it should not be adopted here? Or more precisely to what extent it should be adopted. There are good reasons for not regarding this as a compelling approach to the study of law in society. The main reason relates to the nature of law. There is common cause with Luhmann in the conviction that law itself should be taken seriously, meaning that it should be considered the primary focus of a study in law-and-society; there is also common cause in describing law as a distinct social formation. Where our paths diverge is in describing the nature of the formation; one follows social rules (or structures as Luhmann calls them) along the lines of Hart, the other looks to law’s operations. The answer is not to choose between them, but to see how both aspects can be put to use in understanding law. The notion of law as operations distinct from social activities reveals an aspect that ought to be included in any description of it; but it does not follow that other aspects, more familiar aspects such as legal rules, should be excluded, nor should the actions of officials and citizens. The issue at stake goes to the very heart of what we mean by law, my suggestion being that according to common, academic, and professional understanding, as reflected in both action and language, law means not the stripped-down, bare-bones version, but one embracing its totality, one that includes rules and human action in relation to rules, as well as the logical operations. In terms of the methodological principles, Luhmann’s approach employs only the first, the description of law as a social formation; his account has no place for the other three.

A third matter for consideration is this: what extra dimension does the autopoeitic character of law add, what new issues does it raise? The essential idea is that law is reduced to a set of operations rather than rules, operations based on a binary code that determines whether something is legal or illegal. Those operations, which typically consist in the action of a court deciding one way or the other, can be studied scientifically, the object being to know more about their properties. However, despite often being told how important it is to analyze these operations, quite what new issues they raise for further study remains obscure. One line of enquiry would be to consider how legal operations are conducted with respect to particular subjects, such as contract or financial regulation, giving rise to such issues as: how are these social issues transformed into legal issues, and what problems do they present for a legal system in doing so? These (p.41) are plainly matters of interest and importance. The trouble is that a study of law’s operations only, with the actions of judges, other officials, and citizens being excluded, is necessarily limited and incomplete, since their actions, the reasons they give, and the way cases are framed in legal terms, are normally and naturally considered to be a part of the enquiry into law in society. Since for Luhmann human actors are not regarded as part of law’s operations, that enquiry is out of bounds. How operations are then studied separately from actions remains unclear.

This leads on to a fourth consideration, which is to ask just how important it is to view law as observable operations rather than rules. The answer is that this aspect of law is important, even vital, but does not warrant the dominant, practically exclusive place it is given in understanding law. Its main attraction lies in providing a basis for the autonomy of law. The concept of law-as-operations is what is left after all external social and human factors have been removed, so that what is left is a set of operations producing outcomes that are legal-illegal. In a sense this is the very core of law, and ultimately could be its most basic element and its distinguishing feature, since no other social system is coded to decide legal-illegal. At the same time, having been removed from all human and social contact, it tells us very little about law as the untidy, unwieldy, and socially-corrupted phenomenon we know it to be. Imagine a person who is taken from his social environment, his clothes and all familiar objects removed, his name and identity erased, and his memory obliterated, so that all is left is a biological form, albeit one that works well in the sense that it is a fine specimen of a biological form. We could conclude that this is really what a human being is, and in some sense we would be right, because it is different from any other biological form. It would be a peculiar conclusion and would be reached at a high price of distortion, considering that we normally see human beings enmeshed in dense social environments; we also might wonder at its point. The biological form is, of course, an essential core without which there could be no person, and its importance should be taken into account; but it is just that: a core around which the usual accompaniments form a dense web, which, taken in the totality of its parts, is what we mean by a human being.

A final reason for not embracing the autopoeitic view of law in its full rigour is the idea that law as a social system is separate from its social environment. Critics of Luhmann often try to disprove the autonomy thesis by showing ways in which the boundary between law and its social environment breaks down. That misses the point, which is that law is (p.42) autonomous by definition. The point of describing it as an autopoeitic system is to indicate its autonomy from all that is not internal to it, from all external factors. Law’s autonomy does not mean it has no relations with other, non-legal social factors. As a way of showing the nature of the relations, Luhmann introduces the notion of structural coupling, which means at its most elementary that law is influenced by social factors, but only after they are transformed into a form or code that it can absorb within its own system. High language for expressing the simple point that this is what happens whenever a new piece of legislation is enacted: any social issue, which is bound to have economic, moral, and political aspects, in order to become a legal issue has to be expressed in legal language, using familiar legal concepts and terms, and assuming a legal tradition with its web of doctrines and processes. The dimensional divide between law and its environment is the basis for law’s autonomy. But it is an artificial and weak base, because in practice there is no real or significant difficulty in converting economic, moral, and political issues into legal language and doctrine. Luhmann and his followers make the mistake of thinking that the conversion must be difficult to make and so, in order to protect law’s separateness, should not be included in the social analysis of law. That premise is very dubious; legal orders are adept and well-experienced at making the conversion, normally without difficulty.

Besides the relationship between law and its environment expressed in structural coupling, other aspects of law’s relations with the social environment are relevant to law in society. Law is commonly used in modern societies to influence and change the wider social environment. Resources are directed to that end, extensive human and social capital is expended to make law work, and many of the social goals to which law is put, such as the protection of persons and the environment, the regulation of activities that otherwise would impoverish communities and societies, are considered an essential part of modern legal orders. It is reasonable that we should ask what special attributes it has in doing so, and what added value it brings to other social mechanisms. And if its success is limited, it is worth knowing why, the point being not only to understand how law might be more effective, but also to learn its limits and shortcomings as a tool of social change and social ordering. For these reasons it is hard to resist the conclusion that both law and its environment matter, and are the proper objects of a study of law in society; they amount to good reasons for sustaining an approach that seeks to understand law as a social formation and its interaction with others.

(p.43) To conclude that law-as-autopoeisis should not be the foundation stone of studies of law in society is not to deny either its importance or its influence, as will be seen at various points in this book. The tendency of law towards autopoeisis, and the need for a certain level of autopoeisis, if law is to be a distinctive social formation, the creation of its own language and concepts, are all factors of considerable value in grasping the elusive character of law as a social phenomenon. Luhmann explicitly acknowledges several times that the two fundamental questions for law-and-society are the nature of law and the social conditions that sustain it; he has much to say about the first but, curiously, little about the second. The second is considered in chapters 13 and 14, although this is no more than a tentative beginning. The idea that law is in some sense more fundamental than rules is used in chapter 4 in developing an idea of law prior to rules, while Luhmann’s account of functions within systems helps in analyzing claims made by others concerning law’s functions, although itself proving ultimately to be inadequate. The shadow of autopoeisis falls heavily over the concept of social spheres and assists in understanding their relatively closed character. Whether Luhmann would have approved of such rampant plundering of bits and pieces of his account is unlikely; the short point is that, even though his rigorous approach is not adopted, the study of law in society can not escape its influence.

Notes

Approaches to law-and-society

Empirical research within the socio-legal tradition rarely makes reference to or use of legal theory, whose objective is to elucidate the concept of law and provide an understanding of legal systems. This is understandable since the main aim of socio-legal research is the encounter between law and other aspects of society rather than the law itself.

There are, of course, outstanding exceptions, prominent among which are W. Twining and B. Tamanaha. The former’s extensive writings over many years bring together legal theory and law-and-society. A recent example is: W. Twining, Globalization and Legal Theory (Butterworths, London, 2000). The latter has shown in two recent books how each approach is of use to the other: B. Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Oxford, 1997) and A General Jurisprudence of Law and Society (Oxford, 2001).

(p.44) Other references are often found to the need for research in law-and-society to go beyond the interaction of law and society to include examination of law itself. It is stated that socio-legal research: ‘has a significant role in the development of legal theory.…It needs to draw on broader legal theory to explain what might constitute the “legal”’.: J. Eekelaar and M. Maclean, A Reader on Family Law (Oxford, 1994), pp. 1–2. However, in the collection of readings to which this is an introduction, legal theory is barely mentioned.

Law as social facts

For an explanation of social facts see E. Durkheim, Rules of Sociological Method.

For critiques of Durkheim’s notion of social facts see: R. J. Holton, ‘Classical Social Theory’ in B. S. Turner (ed) The Blackwell Companion to Social Theory (Oxford, 1996);

P. Baert, Op. cit;

R. Cotterrell, EmileDurkheim: Law in a Moral Domain (Stanford, 1999).

Law as subjective construction and interpretation

Although Weber spelt out his approach in terms of the subjective meanings of individuals, at times he comes close to recognizing, both explicitly and implicitly, that there could be social formations that were outside and prior to those actions, and which influenced them. Two examples demonstrate the point, both interestingly drawn from the social explanation of legal phenomena.

First, collective entities, such as states, associations, businesses, foundations, and so on, must properly be considered: ‘as solely the results and modes of organization of the particular acts of individual persons, since they alone can be treated as agents in a course of subjectively understandable action’. (page 13) And yet: ‘…the sociologist cannot…afford to ignore these collective concepts…. These concepts of collective entities which are found both in common sense and in juristic and in other technical forms of thought, have a meaning in the minds of individual persons, partly as of something actually existing, partly as something with normative authority. This is true not only of judges and officials, but also of ordinary private individuals as well. Actors thus in part orient their action to them, and in this role such ideas have a powerful, often a decisive, causal influence on the course of action of real individuals’. (pages 13 and 14, emphasis added). Weber was never one to ignore or down-play the full subtleties of social reality for reasons of theoretical purity, as this example shows, although he (p.45) goes on finally to defend the social-action-as-subjective-meanings thesis.

The second example comes from Weber’s account of legitimate order. He begins by stating that social action may be guided by belief in the existence of a legitimate order. We might at once object that the very way of expressing the case suggests there is a legitimate order to believe in – but let that pass. Weber cites the case of the civil servant who gets to work on time each morning because ‘his action is…determined by the validity of an order (viz. the civil service rules)’ which he obeys both because disobedience would be disadvantageous to him and because of his sense of duty (page 31). Weber continues: that ‘…the order held by at least part of the actors to define a model or to be binding, naturally increases the probability that action will in fact conform to it, often to a very considerable degree’. (page 31). To concede this much is surely very close to conceding that the order has a social existence, which the individual recognizes and which exerts influence on him. There is still an element of individual judgement in each case whether to obey the order, but that is quite different from the claim that society is nothing other than individual actions.

In Law as a Social System, Luhmann writes critically of the Weberian approach to social explanation, suggesting that: ‘Sociology of law is usually restricted to a vague notion of social action or behaviour, and makes up for the contents that are specifically legal by assumptions about the ideas and intentions of the actor and the “intended meaning”’ (page 83).

He goes on to say: ‘…someone who is consciously oriented to law must already know what he has in mind. The individual must be able to refer to a social system, law, which is already constituted…. Therefore, it is impossible to take psychological systems, consciousness, or even the whole human individual as a part or as an internal component of the legal system’ (part 84).

Law as a closed system

Luhmann’s views on law in society evolved over many years, culminating in his last major work: Law as a Social System. The complex and elusive character of his writings make it difficult to be sure of the correct interpretation; of particular help in this regard have been the papers from a symposium held at Cardozo Law School entitled Closed Systems and Open Justice: The Legal Sociology of Niklas Luhmann (1992), reported in 13 Cardozo Law Review.

(p.46) What are the issues for further study that arise from law as autopoeisis?

The question in the text asks: what issues are raised by adopting an autopoeitic approach to law, the suggestion being that the answer is not clear. Luhmann touches on this at many points, for example: ‘The question is…what kind of operations enable a system to form a self-reproducing network which relies exclusively on self-generated information and is capable of distinguishing internal needs from what it sees as environmental needs’ (‘Operational Closure and Structural Coupling: The Differentiation of the Legal System’ (1992) 13 Cardozo Law Review 1419, p. 1420).

On why a rule-based approach to law is inadequate

According to Luhmann, rule-based approaches (such as Hart’s) to understanding law and the autonomy of law, are unsatisfactory: ‘Acceptable legal reasoning has to restrict itself to legal norms,…professionally sound practice, and so on. This is how closure is recognized – or “observed” – in the system (every legal theorist will immediately recognize H. L. A. Hart’s secondary rules of recognition). However, this does not quite satisfactorily explain how closure is produced in the first place’. 13 Cardozo Law Review, p. 1427.

With respect to Hart, Luhmann also writes with reference to the rule of recognition and that it is neither valid or invalid but is simply accepted as appropriate: ‘This has all the advantages and disadvantages of a solution which – leaves open the definition of the unity of a system made up by obligations and habits, by valid rules and invalid rules –. It is this point precisely that is the target of the concept of autopoeisis.’ Law as a Social System, p. 130.

Additional discussions of autopoeisis of special interest include:

J. Priban and D. Nelken (eds), Law’s New Boundaries: The Consequences of Legal Autopoeisis (Aldershot, 2001); G. Teubner, Law As An Autopoeitic System (Oxford, 1993).

Notes:

(1) H. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass., 1983).

(2) E. P. Thompson, Whigs and Hunters (London, 1975).

(3) M. Horwitz, The Transformation of American Law (Cambridge, Mass., 1978).

(4) A good example of an extensive body of research is M. Shapiro, The Supreme Court and Administrative Agencies (New York, 1968).

(5) For an analysis of the law and economics approach: N. Mercuro and S. G. Medema, Economics and the Law: From Posner to Post-Modernism (Princeton, 1997).

(6) For elements of a unified approach see: R. Cooter ‘Law and Unified Social Theory’ in D. J. Galligan (Ed), Socio-Legal Studies in Context: The Oxford Centre Past and Future (Oxford, 1995), pp 50–67.

(7) The main work of Durkheim drawn on is: E Durkheim, The Division of Labour in Society (New York, 1994) and Rules of Sociological Method (New York, 1938).

(8) Much of Weber’s writing on law in society is contained in: M Weber, Economy and Society (2 vols) (Ed) G. Roth and C. Wittick (Berkeley, Cal., 1968).

(9) Luhmann’s main work is: N Luhmann, Law as a Social System (Oxford, 2003) (translated by K. Ziegart).

(10) D. Harriset al, Compensation and Support for Illness and Injury (Oxford, 1984).

(11) S. Lloyd-Bostock, Law in Practice (London, 1988).

(12) H. Genn and Y. Genn, The Effectiveness of Representation Before Tribunals (London, 1989).

(13) These issues are considered in Chapters 7, 15, 16 and 17.

(14) Examples are: G. Richardson, A. Ogus and P. Burrows, Policing Pollution (Oxford, 1982); K. Hawkins, Environment and Enforcement (Oxford, 1983); B. Hutter, The Reasonable Arm of Law (Oxford, 1988).

(15) For a sample of the extensive literature on those issues see G. Rosenberg, The Hollow Hope (Chicago, 1991).

(16) For a sample of illuminating studies see S. Halliday, Judicial Review and Compliance with Administrative Law, (Hart, 2004) and G. Richardson and M. Sunkin, ‘Judicial Review: Question of Impact’ Public Law 79 (London, 1996).

(17) These are Patrick Beart’s words, taken from his excellent recent book The Philosophy of the Social Sciences (Cambridge, 2005), p. 151.

(18) E. Durkheim, Rules of Sociological Method English edition, (New York, 1938), p. 1.

(19) P. Beart, op cit., p. 23.

(20) G. Roth and C. Wittick (eds.) Economy and Society: An outline of interpretive Sociology (Berkeley, 1968), p. 4.

(21) It should be noted in passing that Weber’s claims about reasons being causes is much disputed; see further, A. Ryan, op. cit.

(22) For further discussion J. Coleman, Foundations of Social Theory, (Cambridge, Mass., 1994).

(23) R. M. Dworkin, Laws Empire (Cambridge, Mass., 1988).

(24) J. M. Finnis, Natural Law and Natural Rights (Oxford, 1980).

(25) J. Rawls, A Theory of Justice (Oxford, 1972).

(26) J. Habermas, Between Facts and Norms, (Cambridge, Mass., 1996).

(27) N. Luhmann, op. cit.

(28) Ibid, Chapter 1.

(29) N. Luhmann, Law as a Social System, p. 130.