Reflections on the Methodological Issues of the Sociology of Law
| Date | 01 June 2000 |
| Published date | 01 June 2000 |
| DOI | http://doi.org/10.1111/1467-6478.00154 |
| Author | Reza Banakar |
JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 2, JUNE 2000
ISSN: 0263-323X, pp. 273–95
Reflections on the Methodological Issues of the Sociology
of Law
Reza Banakar*
The general focus of this paper is on the methodological limitations of
the sociology of law in capturing the law’s `truth’ as its practitioners
experience it. The paper starts with arguing that the law does not have
a monolithic ‘truth’. Some aspects of its ‘truth’ are produced through
its own recursively sealed operations, while its other aspects are
generated with reference to empirically grounded knowledge, which
potentially links the discourses of law and sociology. Notwithstanding
this discursive kinship, the sociological studies of the law’s internal
processes cause difficulties even to those scholars who are versed in
substantive law. To expound this problem, the sociology of law is
compared with medical sociology and attention is drawn to the way
sociology copes with the `truth’ of medicine. The final part of the paper
initiates a quest for possible solutions to the methodological problems
of the sociology of law by placing them in the context of the ongoing
conflicts and competitions of the field of science.
The overwhelming majority of sociological studies of the law are conducted
extraneously to law focusing on the interaction between legal and social
factors. These studies stop short of taking ‘the final and logical step from
sociology into law’ leaving the black-letter or substantive aspect of the law
intact, as a result of which ‘most legal academics feel able to dismiss
sociological studies as peripheral to the ‘‘real’’ nature of law as an activity of
heightened academic, textual reasoning’.
1
On the other hand, the number of
273
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1 J. Morison and P. Leith, The Barrister’s World and the Nature of Law (1992) 155.
*Centre for Socio-Legal Studies, Wolfson College, University of Oxford,
Oxford OX2 6UD, England
I am grateful to Roger Cotterrell and David Nelken for their comments and helpful
suggestions.
studies which take this final step and try to investigate the internal operations
of the law in a legal context or, to use David Nelken’s expression, to
examine ‘the way ‘‘society’’ is produced within ‘‘law’’’,
2
are few and often
controversial. This difficulty, according to Roger Cotterrell, ‘prevents legal
sociology from integrating, rather than merely juxtaposing, its studies with
other kinds of legal analysis’.
3
Why do sociological studies of the law conducted from within, that is,
with reference to the internal operations of the law and the experience-based
concepts of its practitioners, pose difficulties even to those socio-legal
scholars who are versed in substantive law? Could it be that law has its own
‘reality’ or ‘truth’, that is, its own way of understanding and describing the
world, which cannot be captured by sociological concepts? To put it differ-
ently, could it be that sociology can understand the world only in terms of its
own concepts, definitions, and assumptions and is, therefore, simply unable
to provide insights into legal ideas and clarify questions about legal doctrine,
as a result of which the essence of law and legal thinking becomes
inaccessible to it?
4
Simply put, the question is whether sociology is able to
climb out of its own skin and get inside the law to understand and explain the
law’s ‘truth’, namely, the motives and meanings of legal phenomena from
within.
What follows aims to examine the limitations of sociology in grasping
the law’s ‘truth’ by pinpointing some unresolved methodological issues
within the sociological studies of law. These methodological obstacles,
which are not specific to the sociology of law, and which also exist in
other sub-branches of sociology, concern the tension between the
‘experience-near’ concepts and perspectives of insiders (such as lawyers,
doctors, clients, and so on) on their field of activity, and the ‘experience-
distant’ theoretical concepts of the outsiders (in this case the sociologist
studying law, medicine, and so on) on the insiders’ perceptions, beliefs,
intentions, and actions.
5
Moreover, there are reasons to suggest that the
institutional belonging and social standing of the insiders determine the
form and extent of this tension. While such insiders as ‘clients’ or
‘patients’ might have no means or reason to challenge the sociologist’s
274
2 D. Nelken, ‘Beyond the Study of ‘‘Law and Society’’ ’ (1986) Am. Bar Foundation J.
323, at 325.
3 R. Cotterrell, ‘Why MustLegal Ideas be Interpreted Sociologically?’ (1998) 25 J. of
Law and Society 172.
4 Compare id., also D. Nelken, ‘Blinding Insights? The Limits of a Reflexive Sociology
of Law’ (1998) 25 J. of Law and Society 407, and D. Nelken (ed.), Law as
Communication (1996).
5 C. Geertz, ‘From the Natives’ point of View: on the Nature of Anthropological
Understanding’ in The Insider/Outsider Problem in the Study of Religion, ed. R.T.
McCutcheon (1999). For Geertz (pp. 38–50) the perspectives of the insider (or the
subject) is ‘experience-near’ and different from that of the outsider (an analyst) which
is ‘experience-distant’. However, the difference between these two perspectives is
one of degree, that is, they are not polar opposites (p. 51).
ßBlackwell Publishers Ltd 2000
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