Making the Case for Socio‐legal Research in Land Law: Renner and the Law of Mortgage
| Published date | 01 December 2010 |
| DOI | http://doi.org/10.1111/j.1467-6478.2010.00521.x |
| Date | 01 December 2010 |
| Author | Lisa Whitehouse |
JOURNAL OF LAW AND SOCIETY
VOLUME 37, NUMBER 4, DECEMBER 2010
ISSN: 0263-323X, pp. 545±68
Making the Case for Socio-legal Research in Land Law:
Renner and the Law of Mortgage
Lisa Whitehouse*
The aim of this article is to enhance knowledge of and to encourage
further research into two areas not traditionally the subject of socio-
legal research, namely, the work of Karl Renner and the English law of
mortgage, for three reasons. First, an account of them supports the
proposition that a true understanding of law requires knowledge of its
origins, content, and function. Second, Renner's theory can contribute
significantly to our understanding of law by offering an alternative to
the polarized debate between legal autopoiesis and other sociological
conceptions of law. Third, it has much to tell us about the relationship
between legal and social change. In particular, Renner's work sug-
gests that those seeking legal reform should look not to the legislature,
but to those capable of influencing its `social function'. Those
frustrated by the lack of doctrinal reform within the law of mortgage
can take heart, therefore, from the continual process of change evident
in its social function. Ultimately, however, further socio-legal research
is required, for a more developed understanding of the law of
mortgage.
INTRODUCTION
This article explores two topics that have not traditionally been the subject of
socio-legal research, namely, the work of Karl Renner and the English law of
mortgage. The relationship between the two derives from a characteristic,
familiar to many aspects of English law and evidenced, in particular, by the
law of mortgage. That characteristic relates to the capacity for legal
545
ß2010 The Author. Journal of Law and Society ß2010 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*The Law School, The University of Hull, Hull HU6 7RX, England
l.a.whitehouse@hull.ac.uk
The author would like to thank the Socio-Legal Studies Association and the Faculty of
Arts and Social Sciences at the University of Hull for funding aspects of this research and
the anonymous referees for their helpful comments on earlier drafts of this article.
institutions to remain unchanged despite radical transformations in the socio-
economic context in which they operate. In accounting for this phenomenon,
Renner argues that legal institutions can remain unchanged for decades, if
not centuries, for the reason that they are normatively pure. As Kahn-Freund
explains, `institutions such as property, contract, succession by inheritance,
are ``neutral'', ``colourless'', ``empty frames'', they are neither ``feudal'', nor
``capitalist'', nor ``socialist''.'
1
In operating as `empty frames', the meaning attributed to and function
served by these institutions is determined not by their doctrinal content but
by their operation within the social context. The latter constituting what
Renner describes as their `social function'.
2
It is the ability, on the part of
society, to manipulate the social function served by these institutions which
reduces the need to reform their juridical content. Where doctrinal reform
does take place then, according to Renner, this will be due to changes that
have already occurred within the social context. To this extent, therefore,
legal reform is viewed as reactive to and often lagging behind social change.
It is Renner's identification and analysis of the separation of content and
function within the law, and its application to the law of mortgage, which
gives rise to three significant assertions. The first is that a true understanding
of law can arise only through knowledge of its origins, content, and function.
This may be seen, given the likely readership of this journal, as the
equivalent of preaching to the converted. Within land law, however, it is
likely to be greeted with a degree of scepticism given that the subject has not
conventionally been seen as a hotbed of socio-legal research. It is perhaps
surprising to note also, given the importance of mortgage finance in the
creation of a mass home-ownership market and Renner's inherent support
for socio-legal research, that neither subject has featured prominently within
socio-legal literature.
Secondly, Renner's work has the potential to contribute significantly to
our understanding of the relationship between legal and social change. In
particular, it offers an alternative to the traditionally polarized debate
between those who view law as normatively closed and those who view it as
responsive to external stimuli. In claiming that the social function of legal
institutions is open to external influence while the doctrinal content of these
institutions is not, Renner's theory exhibits characteristics similar to those
apparent within autopoietic theories.
3
A summary of the concept of
autopoiesis, offered by King, serves to elucidate Renner's conception of
law as a `closed system':
546
1O.Kahn-Freund, `Introduction' in K. Renner, The Institutions of Private Law and
Their Social Functions (1949) 2.
2 Renner, id., p. 75.
3For an account of such theories, see G. Teubner, `Substantive and Reflexive
Elements in Modern Law' (1983) 17 Law and Society Rev. 239 and J. Black,
`Constitutionalising Self-Regulation' (1996) 59 Modern Law Rev. 24.
ß2010 The Author. Journal of Law and Society ß2010 Cardiff University Law School
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