REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02446.x |
| Published date | 01 September 1977 |
| Date | 01 September 1977 |
REVIEWS
THE
SOCIOLOGY
OF
LAW.
Edited
by
PAT
CARLEN.
[Keele:
Socio-
logical Review Monograph
23.
1976.
250
pp. Paperback,
E4.00.1
THIS
collection of British essays represents
a
wide variety
of
approachcs within
the
“
radical
”
sociology of law. They are critical, from their different stand-
points, of past and existing theory and practice and, as Carlen’s introduction
claims they
“
will contribute to a scientific knowledge of law within capitalism
”;
even if
one
does not accept her implied equation of
“
critical
”
with
‘‘
Marxist.”
The divergence of themes and approaches in the essays makes the editor’s
task difficult, but that does not excuse this introduction,
so
full of jargon and
compressed ideas. Those readers who can understand
a
sentence like
“
Result:
epistemological anarchism, normative relativism and political nihilism
”
have
no
need for jargon; those who do not will be put off. Unlike Aubert’s excellent
introduction to his Sociology
of
Law
this one suffers by trying to do too much:
present, in
a
fraction
of
the space, a thesis similar to Hunt’s essay
on
the
sociology
of
law and reconcile
11
different essays. The essays vary from theory
to practice, from polemic to empirical, from legal rule based to social norm
based and from judge-centred to community-centred. If we are to draw con-
clusions for the sociology of law as well as for capitalist socicty we should
say that this diversity is necessary and valuable, rather than risking submerging
these individual approaches under
a
general attempt at reconciliation.
The essays are grouped under four headings. The first,
“
Theory,” contains
“
Max Weber’s Sociology of Law: A Critique
”
by Walton and
“
Perspectives
in
the Sociology of Law
”
by Hunt. Walton’s essay,
a
radical critique, presumes
a
reasonable knowledge of Weber’s legal and political sociology since it is
about those subjects rather than an analysis of them. It might have been more
helpful, especially for the first essay in a collection, to have taken the further
step
of
relating this critique to modern sociology of law theory. Such a general
theory is, however, attempted by Hunt, who tries to circumscribe the theoretical
framework for
“
law as a mode of reproduction of the social order
”
as an
intrinsic part of sociological inquiry into repressive domination.
Is
one to read
a
book such as this as
a
whole or as
11
separate essays?
No
doubt it is
asking too much for the authors to have read each others’ pieces before
rewriting their own for inclusion in a collection, far less can one expect cross-
references. However, themes do recur, and it would have been interesting if,
for example, McBarnet had referred expressly to Hunt’s piece since there are
common threads in their approaches.
On
the other hand, the editor’s introduc-
tion and both theoretical essays (Walton and Hunt) come close to equating
“
critical
”
with
“
Marxist.” Yet although several essays are recognisably
Marxist in tone some, notably those by Sachs, Mayhew and Rendel, owe
little or nothing to Marxism and one, by McBarnet, could be fitted into other
radical theories. Perhaps it would have been helpful to have included another
theoretical piece to help put these essays into context.
The second head is
“
Law as
a
mode
of
reproduction of the social order,”
comprising Spicer on
“
Conspiracy Law, Class and Society,” Beirne on
“
Rent
and Rent Legislation in the
U.K.
1915-72”
and Burton
on
“The Irish
Republican Army and its Community:
A
Struggle for Legitimacy.” These
should be considered with Sachs’s
“
The Myth of Judicial Neutrality,” based
on
the
“
person
”
cases from
1869
to
1929
and included in the third section on
“Women and Law.” The danger in using historical material as the
basis of sociology is that the limitations of the material will be ignored.
This is particularly true
of
studies limited to reported cases. The difficulty
is
seen by Sachs who, rightly, seeks only to draw lessons about judicial ideology
607
608
THE
MODERN LAW
REVIEW
[Vol.
40
and the ideology of law from his materials. Beirne, too, evades the difficulty
by adopting
a
thoroughgoing Marxist approach which, with a generous dose of
historical necessity to explain why things happencd, makes his a piece strictly
for the believer. Spicer, however, falls into the trap of appearing to believe
that law reports are accurate accounts
of
events and, more seriously, that an
absence of a reported case indicates an absence of events. Thus because there
are
no
reported cases of conspiracy to intimidate in the area
of
industrial
relations from
1875
to
1973
Spicer concludes that there were no such cases.
This will not do. Law reports include the marginal case of interest to practi-
tioners and, sometimes, the case of widespread public interest. For other cases
one must search court records or, at the very least, newspapers. More generally,
there are dangers in using potted historical summaries to introduce sociological
themes. For example, Mayhew’s introduction to her
“
Women at Work: A
lawyer discusses the legislation relating to women employees
”
covers three
hundred years in less than
a
page. At best this adds nothing and at worst
it can be positively misleading.
Of the Part Three essays, that by Sachs has already been mentioned. It is a
useful study of judicial ideology, but it is too long and becomes repetitive.
Mayhew’s piece, again already mentioned, and Rendel’s
“
Law as an instrument
of Repression or Reform
”
lack sociological substance. In Part Four,
“
Legal
Profession and Judicial Process,” McBarnet’s study
“
Pre-trial Procedures
and Construction of Conviction
”
is extremely interesting but of more direct
relevance to students
of
the Scottish system than the English. Readers familiar
with Mungham and Bankowski’s other writings are unlikely to find that their
“
The Jury in the Legal System
”
(or, according to the contents page,
“
The
Jury as Proc(:ss,” an interesting and rare example of
a
choice being provided
for readers) offers anything substantially new. Using sociological materials
and methods, Cain’s
“
Necessarily Out
of
Touch: Thoughts on the Organisation
of the English Bar
”
demonstrates the perpetuation of ideological consistency
at the bar in an interesting way, but with results not altogether surprising to
lawyers.
In
conclusion, this is a mixed bag of essays, and valuable for that
reason. It shl3ws that a variety of work is being done in new areas by both
lawyers and sociologists and provides useful starting points for students
of
both
disciplines. DAVID
SCHIFF.
STUART ANDERSON.
TORT
IN
TRANSITION.
By
P.
D.
MCKENZIE,
G.
W.
R.
PALMER
and
R.
S.
CLARK.
[Wellington,
New
Zealand: Fourth Estate
Books.
1976.
xi
and
474
pp.
including tables and index.]
THE
New Zealand Accident Compensation Act of
1972,
which abolished tort
claims for pmonal injury and substitutes an accident compensation scheme
operating ouiside the ordinary courts, has put the future of the tort course in
New Zealand in doubt. Should it continue in something like its present form,
incorporating coverage
of
the accident compensation scheme-or should it be
allowed to disappear, with accident compensation being taught alongside other
social security legislation and the surviving torts finding their way into other
courses? This is the problem which the authors
of
this new casebook have
had to tackle, and their answer is of particular interest to tort teachers in
England awaiting the Report of the Pearson Commission.
As
the title reveals, the solution they arrive at is not necessarily intended
to be
a
permanent one; but they feel that, for the present, the tort course should
survive, and the accident compensation scheme should take its place within it
alongside the traditional torts. This solution offers several advantages.
By
studying the accident compensation scheme against the background of the
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