Blind Insights? The Limits of a Reflexive Sociology of Law

Publication Date01 Sep 1998
DOIhttp://doi.org/10.1111/1467-6478.00098
AuthorDavid Nelken
Is there a danger that sociological approaches to law end up creating
law in their own image? Can they set their own limits? Could they help
further rather than hinder the process by which law becomes more techno-
cratic? Continuing a debate with Roger Cotterrell, this paper offers
an examination of Cotterrell’s suggestion, in the last issue, that these
dangers can be avoided provided that sociological interpretation of legal
ideas recognizes an allegiance to law rather than to academic sociology.
By contrast, I propose a reflexive strategy intended to invite sociology
to examine the ways in which its discourses and practices are both similar
to but also different from those of law.
‘Sociology was born in a state of hostility to law.’ N.S. Timashev
‘A little sociology leads away from the law, much sociology leads back to it.’
M. Hauriou
What is law for sociology? And what is sociology to law? Above all, what
is sociology of law – and more generally any other study of ‘law and’ – good
for? From its emergence as a topic of academic enquiry there has been
division and sometimes competition between those approaches to the
sociological understanding of law whose main aim is to reveal what law is
unable (or unwilling) to see, and those whose goal is to help law see more
clearly. The first approach relates law to its wider historical and social
environment, and to competing and overlapping disciplines and practices,
and has little difficulty in showing how legal actors often have little grasp
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Distinguished Research Professor of Law, Cardiff Law School, P.0. Box
247, Cardiff CF1 1XD, Wales, and Professor of Sociology, Macerata
University, Macerata, Italy
I should like to thank my friend Roger Cotterrell for providing me with a pre-publication draft
of his paper in the last issue and encouraging the continuation in these pages of the many
stimulating discussions we used to have as fellow teachers on the London University LLM
Law and Social Theory course.
407
JOURNAL OF LAW AND SOCIETY
VOLUME 25, NUMBER 3, SEPTEMBER 1998
ISSN: 0263–323X, pp. 407–26
Blinding Insights? The Limits of a Reflexive Sociology of Law
DAVID NELKEN*
of the factors which shape the ‘inputs’ and ‘outcomes’ of their decisions.
The second presupposes most of these constraints and seeks to improve the
quality of decision making in terms which can be used by legal actors. Where
the first type of scholarship deliberately transforms legal definitions into
sociological categories1the second seeks to translate sociological insights
into legal concepts.2
How do these approaches relate? Is there a way of combining them? More
precisely, how far can the methods useful for showing the limits of law’s
sociological understanding of the world also be used for helping law to over-
come those limits? Whereas we should expect there to be much common
ground3there have always also been scholars who have argued that a synthesis
is neither possible nor desirable. Typically the concern of many sociologists
of law has been that the ‘pull of the policy audience’,4or the limitations of
practical decision making in legal settings, would compromise the proper
development of academic social science or blunt the edge of political critique.
But there is also an opposite worry – and it is this which will be my topic in
this paper. Here the charge is that the introduction of different styles of
reasoning can have ill effects for legal practice by misunderstanding and thus
threatening the integrity of legal processes or the values they embody.5In
particular, the introduction of ‘social scientism’ will either succeed all too
easily in making law more of a policy science than is really good for it, as is
claimed by many adhering to the ‘law and literature’ movement,6or else, even
in failing, will produce a ‘hybrid’ monstrosity which is neither law or social
science, as asserted by autopoieticists such as Gunther Teubner.7
408
© Blackwell Publishers Ltd 1998
1All the major textbooks, including Roger Cotterrell’s magisterial synthesis of the field, recon-
ceptualize legal phenomena in terms of issues such as social order, social control, regulation,
dispute processing, governmentality, desert, distribution, power, symbolism, ideology, or
rationality, rather than the doctrinal definitions of lawyers or administrative categories.
2This classification is put forward by John Monahan and Laurens Walker in their leading
United States casebook, Social Science in Law (1994): ‘we here view social science as an
analytic tool in the law, familiarity with which will heighten the lawyer’s professional effec-
tiveness and sharpen the legal scholar’s insights. The principal alternative to the insider
perspective on the relation of social science to law is the “law and society” or sociology of
law approach which seeks to understand the functioning of law as a social system.’ Variations
on this distinction are captured in other classifications such as sociology of law versus socio-
legal studies, ‘law and society’ versus sociological jurisprudence, and so on.
3This is occupied in Britain by the deliberately ecumenical socio-legal association, or the ‘law
in context’ series of textbooks which is dedicated to ‘broadening the study of law from within’.
4 A. Sarat and S. Silbey, ‘The Pull of the Policy Audience’ (1988) 10 Law and Policy 97.
5L. Tribe, ‘Trial by Mathematics: Precision and Ritual in the Legal Process’ (1971) 84 Harvard
Law Rev. 1329; M. Constable, The Law of the Other (1994); D. Nelken ‘A just measure of
science’ in Science at Court, eds. M. Freeman and H. Reece (1998).
6 See, for example, J. Boyd White, When Words Lose their Meaning (1984).
7G. Teubner, ‘How the Law Thinks: Toward a Constructivist Epistemology of Law’ (1989)
23 Law and Society Rev. 727; when law ‘enslaves’ science it produces hybrid creatures having
‘unclear epistemic status and unknown social consequences’.

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