Why Must Legal Ideas Be Interpreted Sociologically?
| DOI | http://doi.org/10.1111/1467-6478.00086 |
| Date | 01 June 1998 |
| Published date | 01 June 1998 |
Sociology of law and socio-legal studies are sometimes declared unable
to give insight into the nature of legal ideas or to clarify questions about
legal doctrine. The idea that law has its own ‘truth’ – its own way of
seeing the world – has been used to deny that sociological perspectives
have any special claim to provide understanding of law as doctrine. This
paper tries to specify what sociological understanding of legal ideas
entails. It argues that such an understanding is not merely useful but
necessary for legal studies. Legal scholarship entails sociological
understanding of law. The two are inseparable.
I. SOCIOLOGY OF LAW AND LEGAL IDEAS
A modern myth about sociological study of law survived until quite recently,
encouraged from within legal philosophy and by some legal sociologists
themselves. According to this myth an inevitable division of labour governed
legal inquiry. While lawyers and jurists analysed law as doctrine – norms,
rules, principles, concepts and the modes of their interpretation and valida-
tion, sociologists were concerned with a fundamentally different study: that
of behaviour, its causes and consequences. Hence, the legal sociologist’s task
was solely to examine behaviour in legal contexts.1Sociology could contribute
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Professor of Legal Theory, Queen Mary and Westfield College, University
of London, Mile End Road, London E1 4NS, England
Earlier versions of this paper were presented at the Socio-Legal Studies Association Conference,
University of Wales, Cardiff in April 1997 and at the Nordic Forum for the Sociology of Law,
Landskrona, Sweden in June 1997. I am grateful to David Nelken for much valuable discussion
and incisive criticism. Also to Per Stjernquist, Alan Norrie, Peter Fitzpatrick, Hanna Petersen,
Vincenzo Ferrari, Grazyna Skapska, and Jørgen Dalberg-Larsen for particular comments.
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JOURNAL OF LAW AND SOCIETY
VOLUME 25, NUMBER 2, JUNE 1998
ISSN: 0263–323X, pp. 171–92
Why Must Legal Ideas Be Interpreted Sociologically?
ROGER COTTERRELL*
1See, for example, D. Black, The Behavior of Law (1976), treating legal sociology as the study
of governmental social control. Correspondingly, Hans Kelsen wrote of sociology’s role as
that of inquiring ‘into the causes and effects of those natural events that . . . are represented
as legal acts.’ See H. Kelsen, Introduction to the Problems of Legal Theory (1992) 13. In his
final work, he asserted that such a legal sociology ‘does not describe the law, but rather law-
creating behaviour and law-observing or law-violating behaviour. See H. Kelsen, General
Theory of Norms (1991) 301.
little to the understanding of legal ideas, abstracted from their effects on
specific actions. In this sense sociology of law conducted inquiries peripheral
or even external to law as lawyers understood it. Legal sociologists often
avoided lawyers’ disputes or theories about the nature of doctrine as such.2
They studied primarily practices of dispute processing, administrative activ-
ity or law enforcement, or social forces operating on legislation, especially as
a result of the actions of particular law-making or policy-advocating groups.
That this division of labour was in no way inevitable is clear from the
briefest glance at the work of the classic founders of sociology of law. While
Max Weber saw sociology’s object as the study of social action, he treated
the nature of legal ideas and the variety of types of legal reasoning as central
to his sociological concern with law.3Émile Durkheim intended that the
enterprise of understanding law as doctrine should itself become a field
of sociology, so that lawyers’ questions would eventually be reformulated
through sociological insight.4For Eugen Ehrlich, the lawyer’s understanding
of law would be simultaneously subverted and set on surer foundations by
means of sociological inquiry into popular understandings of legal ideas.5Leon
Petrazycki considered that law should be studied as a variety of forms of
consciousness and understanding.6Equally, numerous contributions to legal
philosophy, including modern realist jurisprudence in Scandinavia, the United
States of America, and elsewhere, showed that jurists had serious concerns with
behaviour in legal contexts in their efforts to grasp the nature of legal ideas.
To remove a focus on legal doctrine from sociological inquiry would
prevent legal sociology from integrating, rather than merely juxtaposing, its
studies with other kinds of legal analysis. Without this focus, sociological
observation of behaviour might influence policy expressed in legal doctrine;
but this would amount not to a sociology of law but to a diversity of
sociological information presented to legal policy-makers.7The old claim
that social science should be ‘on tap rather than on top’ in legal inquiries
reflected the idea that sociology and other social sciences were debarred
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© Blackwell Publishers Ltd 1998
2Vilhelm Aubert’s work provides a significant exception. See, for example, V. Aubert, ‘The
Structure of Legal Thinking’ in Legal Essays: A Tribute to Frede Castberg, eds. J. Andenaes
et al. (1963) 41–63; and C. M. Campbell, ‘Legal Thought and Juristic Values’ (1974) 1 Brit.
J. of Law and Society 13–30.
3 M. Weber, Economy and Society (1968) part 2, ch. 8.
4É. Durkheim, Letter to the Director of the Revue néo-scholastique, in É. Durkheim, The
Rules of Sociological Method and Selected Essays on Sociology and its Method (1982) 260;
É. Durkheim, Textes 1: Élements d’une théorie sociale (1975) 244.
5 E. Ehrlich, Fundamental Principles of the Sociology of Law (1936).
6 L. Petrazycki, Law and Morality (1955).
7Nothing in this paper should be taken as denying the worth of sociological studies of
behaviour in legal contexts. In my view, these kinds of studies have produced insights of
the greatest significance and should continue to occupy a central place in social inquiries
about law. My argument here is, however, that the sociological interpretation of legal ideas
should have a central place within legal studies generally, and that it is important for socio-
legal scholarship and for legal scholarship in general that this place should be claimed.
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