Interest in the sociology of law is even more widespread in Western countries. Some important research has been done by Indian scientists,[84] but we find only a limited amount of socio-legal work by researchers from the Middle East or the central and northern regions of Africa. [85] Thus, the global distribution of legal sociological studies appears unequal and focuses mainly on industrial nations with democratic political systems. In this sense, the global expansion of the sociology of law “does not take place uniformly across national borders and appears to be correlated with a combination of factors such as national wealth/poverty and the political form of organization, as well as historical factors such as the growth of the welfare state. However, none of these factors alone can explain this discrepancy. [86] More than often, the sociology of law benefits from research in other fields such as comparative law, critical jurisprudence, jurisprudence, legal theory, law and economics, law and literature. Its subject and that of jurisprudence, which focuses on institutional issues conditioned by social and political situations, converge – for example, in the interdisciplinary fields of criminology and economic analysis of law – and contribute to broadening the power of legal norms, but also to making their effects a scientific concern. [8] [9] Similarly, decades of work on the empiricism of law enforcement, policing, sentencing, sentencing and imprisonment from sociology, legal analysis, and political science describe how formal rules are ignored or manipulated to create large differences in stops, arrests, charges, convictions and incarcerations (see, for example, Provine, 2007, on disparities in cocaine-related arrests and indictments). Numerous empirical studies on plea bargaining and imprisonment (Alexander, 2010; Forman, 2017) also document that the behaviour of all law enforcement officials (police, lawyers, and judges) is not consistent with non-racially motivated legal rules or law enforcement agencies. Many social law studies document similar discriminatory models in housing, elections, employment, and education (see summaries in Seron, 2016; Munger and Seron, 2017).
Leon Petrazycki distinguished between forms of “official law,” which is supported by the state, and “intuitive law,” which consists of legal experiments, which in turn consist of a complex of psychological processes in the mind of the individual without reference to external authorities. [23] Petrazycki`s work dealt with sociological problems and his method was empirical, asserting that knowledge of objects or relationships could only be acquired through observation. However, he formulated his theory in the language of cognitive psychology and moral philosophy rather than sociology. Consequently, his contribution to the development of the sociology of law remains largely unknown. [24] Thus, Petrazycki`s “intuitive law” influenced not only the development of George Gurvitch`s concept of “social law” (see below), which in turn left its mark on the theorization of social law, but also the work of later scholars in social law. Among those who were directly inspired by Petrazykki`s work was Polish sociologist of law Adam Podgórecki. [25] Some influential approaches to the sociology of law have challenged legal definitions in relation to official (constitutional) law (see, for example, Eugen Ehrlich`s concept of “living law” and George Gurvitch`s “social law”). From this perspective, law is understood to include not only the legal system and formal (or formal) legal institutions and processes, but also various informal (or unofficial) forms of nomativity and regulation generated within groups, associations and communities. Sociological studies of law are therefore not limited to analyzing how the rules or institutions of the legal system interact with social class, gender, race, religion, sexuality and other social categories. They also focus on how the internal normative orders of different groups and “communities,” such as the community of lawyers, businessmen, academics, members of political parties or members of the mafia, interact with each other. In short, law is studied as an integral and constitutive part of social institutions, groups and communities.
This approach is developed in more detail in the section on legal pluralism. [83] In the United States, social law experts have been asked to investigate issues such as: whether civilians should be involved in reviewing police decisions; what procedures should be applied in the various regulatory matters; the impact that the media might have on legal decision-making (think of the “CSI” effect – jurors demanding more technical and forensic evidence after many years of television broadcasts exaggerating the validity of that evidence; see Goehner, Lofaro, & Novak, 2004; Kopacki, 2013); what legal interventions are most effective in ensuring compliance (e.g., health and safety); and which measures are most effective in the areas of social protection, family law and immigration policy (Sarat and Ewick, 2015). In other cases, lawyers call on social scientists as experts (as in statistical evidence of workplace discrimination and public health cases) or to gather data arguments for modern “Brandeis briefs.” Unlike many jurisdictions where the judge appoints a single expert to advise the court, American antagonism (Kagan, 2003) has spawned the “battle of competing experts” in many judicial and administrative proceedings, including health and medical sciences, weapons forensics, accident mapping, and a variety of (less common) social science issues. Thus, in some cases, empiricism is alive and well in our trials (even though trials are extremely rare these days – less than 2% of all cases filed in our federal court system end up in a trial [Galanter, 2004], although experts are always abandoned at pre-trial discovery and their reports are factored into court decisions and motions). Over the past 50 years of the field of social law, many researchers have developed maps of the impact and periodization of ideas and eras. More recently, other fields (e.g., behavioural economics) have used and produced fundamental concepts and studies from the older socio-legal domain (e.g., group behaviour in business management and social influences in decision-making). Yet judges, legal policymakers, and other actors in legal institutions continue to develop, interpret, apply, and evaluate laws, often with empirical claims of validity or prediction, without really referring to verifiable data or empirically valid models of social data. This chapter, through my own work on social law as well as that of other researchers, provides an overview of the use and misuse (or omission) of socio-legal research (empirical and conceptual) in law (doctrine, policy and theory).
This essay describes the “origin stories” of the field and mine, rooted in the main socio-legal ideas of law in the social context, legal realism, legal pluralism, legal movements and institutions, the “gaps” of law in books compared to law in action, law and culture, legal theory, ideology and the role of law in social change. I then review some examples of “good” applications of social law methods and theories (e.g., sound concepts and research on legal processes, decision-making, law enforcement and social control, and cultural meanings of law for laypeople and professionals), as well as some examples of abuse (or lack of use) of rigorous studies in social law. I conclude with a few observations on why social law studies remain somewhat marginalized in legal decision-making (different “standards of evidence” in different disciplines) and in law studies in general (both at the teaching and research levels). A second exception can be found in the work of researchers who have used the resources of ethnomethodology and symbolic interactionism in the study of legal frameworks. [75] This type of research is clearly sociological research rather than social law research, as it is constantly discussed with other theoretical traditions of sociology. Max Travers` doctoral dissertation on the work of a criminal law firm accused other sociologists, especially Marxists, of not addressing or respecting how lawyers and clients understand their own actions (a standard argument used by ethnomethodologists in debates with the discipline`s structural traditions). However, he also explored the question raised by legal thinkers in their critique of structural traditions in the sociology of law: to what extent the social sciences can deal with the content of legal practice. The second module describes and analyses current social issues and problems from the perspective of the theories of social law examined so far. Great importance is given to the elaboration of a research proposal based on a review of previous research (or “literature search” in legal sociology), the formulation of a sociologically valid and relevant research question, the development of an appropriate socio-legal theoretical framework for the analysis of the research question and, finally, the development of a methodological approach for the implementation of this research.