Book Review: RICHARD NOBLES and DAVID SCHIFF, A Sociology of Jurisprudence. Oxford: Hart Publishing, 2006, 249 pp., ISBN 1841135984, £16 (pbk)
| Published date | 01 September 2008 |
| Date | 01 September 2008 |
| Author | Mark Dawson |
| DOI | 10.1177/0964663908093971 |
| Subject Matter | Articles |
BOOK REVIEWS
RICHARD NOBLES and DAVID SCHIFF,A Sociology of Jurisprudence. Oxford: Hart
Publishing, 2006, 249 pp., ISBN 1841135984, £16 (pbk).
It has been widely commented upon that Niklas Luhmann’s social theory has not
widely engaged legal academia in the UK or the USA. This is particularly surprising
given the importance of law to his social analysis. In its preface, A Sociology of Juris-
prudence aims to go some way to addressing this gap, providing an account not only
of law as such, but of how it has been reconstructed in the world of social and legal
theory. The book seeks to address both this division and a more general divide –
between sociology of law, on the one hand, and analytical jurisprudence, on the other.
The methodology of the book clearly emerges from the first tradition – it carries
on Luhmann’s project in viewing law first and foremost as a system of social communi-
cation rather than a series of rules, institutions or processes. On the other hand, the
authors criticize sociological approaches that take an entirely external perspective on
law, using the methodologies and categories of social science to uncover the ‘true
nature’ of legal institutions. The job of sociological observation, they insist, is to recon-
struct the legal system as an autonomous entity and hence a system with a rationality
and language of its own. Rather as with Luhmann’s approach more generally, A Soci-
ology of Jurisprudence seeks to see the law simultaneously as a part of social life and
as functioning only where it is able to operate and reproduce itself autonomously.
This observation, taken further, leads them to argue that jurisprudence itself can
be seen in these terms: not just as theorizing or giving expression to law, but as a
part of law’s ongoing self-description. Jurisprudence may be less an alternative
account of ‘what law is’ than a potential window into the internal world of the legal
system. A Sociology of Jurisprudence explores key texts in legal theory – by Dworkin,
Hart, Kelsen and Unger – in this way, as a touching point both with law’s self-
understanding, and its observation of its environment. The idea of observation is
critical. The authors describe Luhmann’s theory as anti-foundational in so much as it
refuses either law or legal academics an external perspective on social life. Instead,
Luhmann argued that our observations take place inside communicative systems.
Systems provide communications for us in so much as new meanings must connect
to older ones in order to be selected as valid. Every communication (in law about
what is legal or illegal) is understood in terms of prior applications of that code.
This gives rise to a paradox. On the one hand, the application of the code is arbi-
trary (in the sense that it has no intrinsic meaning). As the authors repeatedly point
out, ‘if I told you that an unknown fact “X” was legal, what would that tell you other
than that it was not illegal, and vice versa?’ (p. 101). On the other hand, in order to
communicate successfully, legal participants must attempt to link up or connect to
existing communications. A deeply held convention (for example, the sovereignty of
Parliament) is unlikely to be jettisoned, not because it meets with a moral principle
that must be invoked or acts as a rule of recognition, but because so much present
SOCIAL &LEGAL STUDIES Copyright © 2008 SAGE Publications
Los Angeles, London, New Delhi and Singapore, www.sagepublications.com
0964 6639, Vol. 17(3), 407–423
DOI: 10.1177/0964663908093971
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