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Although early sociologists studied law as part of industrialization and modernization, a distinct subfield emerged after the mid-twentieth century. This research paper focuses on two key bodies of research in the sociology of law: (1) studies of the formal institutions of law and (2) studies of the circulation, reception, and consumption of law, broadly conceived, beyond formal institutions of law. This research paper summarizes key questions and findings of this work, describes its influence on later studies of law and globalization, and assesses its value added for sociolegal studies.
- Research on Formal Law, Legal Institutions, and Legal Actors
- Research on the Circulation, Reception, and Consumption of Law
- Lay Engagement, Legal Consciousness, and the Constitutive Perspective
- Interpretation, Implementation, and Enforcement
- Globalization, Governance, and Transnational Legal Transfers
Although the implicit and explicit study of law can be found in the writings of many early sociologists, the demarcation of the sociology of law as a distinct subfield within sociology began largely after the mid-twentieth century. The Research Committee on the Sociology of Law of the International Sociological Association, created in 1962, and the Law and Society Association, founded in 1964, were vitally important in bringing together social scientists conducting research on law. Yet the gradual nature of field development is signaled by the fact the American Sociological Association Section on the Sociology of Law was formed only in 1992 (the Section on Crime, Law, and Deviance had been in existence for some time).
As seems to have occurred in other areas of sociology, the coalescing of this new subfield began with a focus on the core institutions and the main groups of people engaged with those institutions. Just as sociologists of medicine initially studied hospitals, doctors’ offices, medical schools, doctors, nurses, and patients and the sociologists of science initially studied laboratories, scientists, and technicians, so the sociologists of law looked first at courts (at multiple levels), juries, judges, lawyers, paralegals, and clients. And as occurred in other maturing fields, sociologists gradually began to look beyond these core institutions, core actors, and core activities, thinking more broadly about how law and legal actors function outside courts and law offices. This research paper focuses especially on these two key bodies of research in the sociology of law: (1) studies of the formal institutions of law, conducted especially from the mid- 1960s through the early 1980s (but continuing to the present) and (2) studies of the circulation, reception, and consumption of law, broadly conceived, beyond these formal institutional settings, conducted mainly since the early 1980s. Referring to these two bodies of research with the shorthand phrases ‘law within the courts’ and ‘law beyond the courts’, this research paper summarizes the key questions and findings of this work in Sections Research on Formal Law, Legal Institutions, and Legal Actors and Research on the Circulation, Reception, and Consumption of Law. The Section Globalization, Governance, and Transnational Legal Transfers describes investigations of the relationship between law and globalization, particularly in the late twentieth century. The Section Conclusion assesses the value added from research on the sociology of law.
Research on Formal Law, Legal Institutions, and Legal Actors
The early beginnings of the sociology of law can be traced to the brilliant and still valuable work of Emile Durkheim, Max Weber, and Karl Marx. Primarily concerned with such issues as the growth of capitalism, the division of labor, or the exploitation of workers, these early sociologists were interested in law as one of the constellation of forces at work in industrialization and modernization. Although he shared these concerns with what law contributed to the organization of society, Talcott Parsons (1954) was also one of the first scholars to distinguish professions from other kinds of work and to emphasize the unique orientations and contributions of professionals such as lawyers and judges. This emphasis on legal actors themselves and the nature of their work helped propel the sociology of law into its next phase.
Animating the research on the sociology of law, then, were two sets of questions coming, on the one hand, from the legal academy and, on the other, from sociology. From the legal academy came questions about the gap between ‘law on the books’ and ‘law in action’, a discrepancy first noted by the legal realists of the early twentieth century (Pound, 1910). From sociology came questions about the organization of legal work, the careers of lawyers, and the capacity of law to redress injustice and mitigate inequality. Inspired by sociologists’ questions about professions and legal scholars’ questions about how law actually functions, sociologists – now beginning to identify themselves explicitly as sociologists of law – focused initially on legal sites, legal actors, and legal work. Over time, in a loose professional division of labor, some of these research areas came to be dominated by scholars from other fields. Jury studies and studies of procedural justice, for instance, have mostly been carried out by social psychologists; studies of court decisions and law making have mostly been conducted by political scientists. Sociologists have continued to dominate, though, in studies of law firms, the legal profession, and the relationship between law and social inequality.
From a sociological perspective, the existence of the gap between law on the books and the practice of law is not particularly surprising. People sometimes prefer to do things informally rather than relying on formal legal tools such as contracts (Macaulay, 1963), and the law often is not implemented exactly as it was written. Notably, these findings could be anticipated in a discipline that has emphasized the discrepancies between formal organizations and the less formal workings of those same entities.
But although sociologists had examined the gap between plans and action and between formal and informal processes in a wide variety of settings, research on the gap in law has nevertheless been significant. Because law often works by ‘double institutionalizing’ (Bohanan, 1965) existing rules, laws often are supported and enforced by more than one institutional system; these extra resources might be expected to decrease the gap. Because law is often billed as the last hope for the weak and vulnerable, gaps may be especially consequential. Yet, at best, law seems only marginally better at narrowing the gap between prescription and implementation. But beyond demonstrating the universality of the gap, scholars have also documented and described variations in the nature of the gap (Gould and Barclay, 2012). In core legal institutions such as the civil and criminal justice systems, scholars have demonstrated that justice works differently for different kinds of people (Feeley, 1979; Provine, 2011). In essence, these studies join together observations about the workings of organizations and work groups with observations about social inequality: formal statements of rules are not good descriptions of how action unfolds, but as rules are implemented, those who have abundant resources are more likely than those with scanty resources to be able to make the rules work to their advantage. These findings are brought together in such summary statements as Black’s (1976) argument that more law is applied to people lower in the social hierarchy, in Galanter’s (1974) piece on the ‘haves’ and ‘have nots’, and in Lempert and Sanders’ (1986) discussion of legal endowments (which can be read as an attempt to account for variations in the nature and magnitude of the gap). Among other things, the sociological literature on the gap shows that although a gap may be a problem for some, it can be an opportunity for others (from the point of view of institutionalists in sociology, official forms can provide cover). Moreover, the gap is in part created by the sometimes valorized, sometimes disparaged use of discretion, perhaps especially in the government agencies and regulatory bodies that translate and implement law (Lipsky, 1980).
In thinking about the relationship between inequality and law, sociologists of law have also looked closely at the configuration of law firms and at the careers of lawyers and judges. Parsons included lawyers among the professionals who were differentiated from other workers both by the importance of their contributions to the smooth functioning of society and by the norms that guided their work. The expectation was that they could be counted on to pursue the interests of their clients in a disinterested way and that external regulation could be relatively light because professionals would monitor their own and their colleagues’ work, which in any case could not so easily be judged by others who lacked their training and expertise. Over the years, sociological research suggested that professionals, including lawyers, were not quite so disinterested as Parsons believed. A few indicators make the point: legal education is expensive and not easily accessible to any but an elite and although many law students enter law school with the intention of doing public interest law, far fewer have this aspiration by the time they graduate (Granfield, 1992; Schleef, 2005); minorities and women are less likely to be represented in the fraternity of lawyers, and when they do enter the profession, tend to have careers that are systematically different than those of their nonminority, male colleagues (Epstein, 1981; Kay and Gorman, 2008); legal services are costly and more available to the rich than the poor, reproducing and exacerbating existing inequalities (Sandefur, 2008); lawyers, like other professionals, prefer to work on esoteric problems (such as those raised in corporate or constitutional law) rather than mundane ones (such as those raised in family law or probate law (Sandefur, 2001)); lawyers who work on the problems of the rich and powerful or the problems of corporations are paid better than those who attend to individuals, especially poor ones (Sandefur, 2001; Heinz et al., 2005). If anything, the location of legal work in firms magnifies these differences. As research on law firms shows, legal work tends to be split into ‘hemispheres’ with one group of practitioners focused on individual clients and the other focused on organizations (Heinz and Laumann, 1982; Heinz et al., 2005).
Research on the Circulation, Reception, and Consumption of Law
Beginning roughly in the 1980s, the sociology of law moved ‘beyond the courts’. Where earlier work examined the practice of law within formal legal institutions and examined the role of lawyers and judges in the interpretation, application, and enforcement of formal law, later work took as its starting point understandings or contests over law as they emerge outside of formal legal institutions. Rather than accepting the internalist demarcations of the boundary between what counts as formal law and what does not, sociologists of law instead problematized the question of what comes to be understood as ‘legal’ and ‘not legal’. They studied both the presence and absence of law in a variety of arenas to determine if, when, and how law did – and just as importantly, did not – appear in lay accounts of the disputes, grievances, and administrative transactions of daily life. Two developments stand out in this exceptionally rich vein of research on law ‘beyond the courts’.
Lay Engagement, Legal Consciousness, and the Constitutive Perspective
In the spirit of the ‘cultural turn’ to the study of meanings and symbols that animated humanistic and social science scholarship in the 1980s, sociologists of law looked carefully at lay engagement with law (Silbey, 2005). They asked how lay understandings of law emerge and how legal institutions are able to retain their authority in the face of persistent gaps between legal doctrine and legal practice (Silbey and Bittner, 1982; Merry, 1985; Ewick and Silbey, 1998; Nielsen, 2004). These studies of legal consciousness and the associated constitutive perspective emphasize the inseparability of the social and cultural in what comes to be understood as legal.
A central research question in this genre was how conflicts in everyday life may or may not come to be understood as legal disputes or as requiring legal intervention, encapsulated in the so-called dispute pyramid and associated ‘naming, shaming, and blaming’ rubric (Felstiner et al., 1980). Rather than treating law as ‘black letter’ law codified in formal legal doctrine and enforced by experts (lawyers) in formal legal institutions that exist at some remove from society, sociologists instead took a law in society approach to show that both legal and nonlegal actors create, interpret, and selectively use rules, regulations, and legal doctrine in particular historical, cultural, and political contexts. Taken from the vantage point of the everyday, what comes to be understood as within the purview of the law informs what law can (and cannot) do and, therefore, is a key factor mediating the observed gap between law on the books and law in action that animated scholarship on the workings of law in formal legal settings.
Interpretation, Implementation, and Enforcement
As sociologists of law explored everyday uses of law, they also began to train attention on the mesolevel – the organizations, which are the central sites of adoption, adaptation, and resistance to new laws, rules, and regulations. Scholars have explored the role of law in regulating activity in a wide range of institutional spheres, including medicine (Heimer, 1999; Horowitz, 2012; Shapiro, 2012), science (Jasanoff, 1995; Silbey and Ewick, 2003), insurance (Heimer, 1985; Baker, 2010), and finance (Halliday and Carruthers, 2007), among others. The diffusion of law and legalistic modes of governance into these diverse settings have brought a good deal of extra compliance work, but have not often brought the leveling of the playing field or the decreases in injustice that Selznick and his colleagues (Selznick et al., 1969) might have anticipated.
This mesolevel research drew on neoinstitutionalists’ research on the diffusion and institutionalization of new laws, regulations, and associated practices in professional fields and organizations. If enacted, do new laws and regulations achieve their intended effects? A key insight of neoinstitutional theorists is that the adoption of new policies or practices can be purely performative or ceremonial (Meyer and Rowan, 1977), a means to signal credibility, legitimacy, or superficial compliance with new regulations or norms. In fact, accepted professional norms or organizational practices can powerfully persist even as organizations seek to innovate, sometimes leading to ‘institutional isomorphism’ among a particular population of organizations with a shared purpose, function, or market (DiMaggio and Powell, 1983). This early research spurred the study of the decoupling of organizational policies from actual practices.
Of relevance to sociolegal inquiry is the cautionary message that there is no simple relationship between the adoption of new laws, policies, and regulations and changes in organizational practices. However, other studies have shown that initial symbolic adoption can later lead to instrumental effects, particularly if a profession or constituency develops to support and institutionalize a new policy or practice (Heimer, 1999; Dobbin, 2011). For example, even after the legal pressures for adoption of corporate affirmative action policies had waned, human resources personnel successfully made the case for a link between greater efficiency and greater workforce diversity (Dobbin, 2011). Organizational policies and practices also may influence common understandings of the problem the law was designed to address as well as the substance of the laws and regulations to which organizations are subject. For example, organizations in the United States anticipated employment discrimination lawsuits and preemptively created internal Equal Employment Opportunity Grievance Procedures. Because definitions of compliance were worked out in the back and forth between courts, regulatory agencies, and regulated organizations, these organizational policies ultimately served as a shield against corporate liability in court and effectively helped to constitute the nature and substantive content of laws designed to prevent and sanction discrimination in employment decisions (e.g., hiring and firing) and work conditions (e.g., sexual harassment) (Edelman et al., 1999, 2011). In effect, law is endogenous and organizations cocreate the meaning of the laws and regulations to which they are subject. If anything, organizations seem to have had the upper hand in this process of cocreation. Nelson and Bridges’ (1999) painstaking study of organizations that were sued shows that courts all too often uncritically accepted employing organizations’ market explanations for pay inequities, in effect legalizing gender-based wage inequality.
Seeking to explain legal change, scholars looked at the activities of the legal and nonlegal change agents who helped craft new laws, regulations, and organizational practices, both within and beyond courts. Institutional entrepreneurs created new organizational forms (DiMaggio, 1988); cultural entrepreneurs crafted new concepts to highlight existing problems (such as sexual harassment) and new rules and laws to reshape behavior (Saguy, 2003); and professionals functioned much like social movement activists by pushing for new organizational policy, structure, and practice within their areas of expertise (Davis et al., 2005). Because new organizational forms codify contested definitions of law and social problems, organizational settings offer sites in which scholars can learn how everyday decision making and interactions help produce higher-order social consequences, often but not always reproducing existing social inequalities.
Globalization, Governance, and Transnational Legal Transfers
More recently, sociologists of law have contributed to research on late twentieth-century processes of globalization. Of course, the global context has always shaped the research agenda of anthropologists of law and other sociolegal scholars studying legal pluralism, colonization, decolonization, and postcolonial legal reform. In contrast, sociologists of law became interested in global processes much later and have drawn on their disciplinary heritage to trace the exportation and transnational movement of legal professions, formal legal institutions, and legal regimes from the global North to the global South.
Sociologists of law have taken up studies of change in formal law, legal institutions, and the legal profession, both in comparative and global contexts. Actors, organizations, and professions make up transnational networks that facilitate the global diffusion of particular laws and legal regimes with their attendant legal and cultural norms. Similar to studies of the legal profession in studies of law ‘within the courts’ and change agents in studies of law ‘beyond the courts’, much work in this area initially focused on elite lawyers (Munger, 2012) who lead or challenge the adoption of new laws, regulations, or governance structures at the national level but who simultaneously influence and are influenced by developments at the transnational level (Dezalay and Garth, 1996, 2002, 2010). Later studies of domestic and transnational social movements have highlighted the role of nonelites and activists in legal and constitutional reform (Kay, 2011; Klug, 2000; Merry, 2006; Munger, 2008–09).
Legal sociologists have also carried their interest in understandings, uses, and impacts of law beyond courts and formal legal institutions into comparative and global research. Similar to studies of adoption and institutionalization of new rules within organizations based in the United Studies, studies of innovation and diffusion have animated scholarship on the globalization of law (Halliday and Osinsky, 2006) and public policy (Dobbin et al., 2007). Transnational diffusion inevitably involves resistance, adaptation, and innovation by domestic actors who often must do substantial work to make new laws, rules, norms, and technologies – often formulated in the global North – relevant in new environments – often in the global South (Klug, 2002; Merry, 2006; Heimer, 2013). For example, human rights activists ‘vernacularize’ purportedly universal norms, translating them into local discourses and using them to make more specific claims in their own countries (Merry, 2006). Such domestic actors exercise agency by resisting the imposition of foreign norms and simultaneously using these same norms strategically to further their own domestic agendas.
Just as sociologists of law demonstrated that legal and nonlegal processes enacted beyond the courts domestically often influenced processes enacted within national courts and other legal institutions, so scholars have documented similar feedback effects spanning national borders. In global bankruptcy regimes, for instance, Halliday and Carruthers (2007) find ‘recursivity’ at both national and transnational levels. Likewise, the ‘hybridity’ of new constitutions crafted after democratic transitions incorporate both domestic and international content and in turn create new exemplars for others to use (Klug, 2002).
As a subdiscipline, the sociology of law has fruitfully joined research on the central institutions of law with research that acknowledges the complexity of life outside these main sites of formal legal activity. But what special insights into sociolegal processes have come from these sociological studies? And, in turn, what new insights has the sociology of law brought to the discipline of sociology?
The sociology of law draws on sociology’s longstanding study of complex organizations, professions, and social inequality to gain insight into what happens in courts, regulatory agencies, and law firms and the institutional spheres in which law is applied (e.g., hospitals, laboratories, insurance companies). Actors at work within these organizations, including lawyers, judges, and police, but also other nonlegal personnel (doctors, human resource personnel, administrators) charged with enforcing the law beyond the courts, variously cooperate, collaborate, resist, and adapt the law’s requirements in ways that simultaneously apply, alter, and elaborate the law, thereby often influencing both the substantive content of formal law and the extent to which it achieves its intended effects. Clearly for law to do its work, it has to travel beyond the courts into other institutional settings. But when it arrives in those settings, it is deeply shaped by the day-to-day, practical constraints of organizations. Translating law into organizational routines fundamentally alters the meaning of law. Moreover, law in action is also deeply shaped by the fact that the professionals who do law-related work are not simply neutral instruments of the law, but are also people who care about compensation, prestige, challenging work, and the interests of their professions and their employers. And although law is sometimes billed as a tool to help the disadvantaged (and of course it is sometimes deployed that way), it often instead shores up inequalities. Actors with more resources or more experience using legal tools are more able to use law to their advantage. Examining law from sociological perspective thus gives us important insights about where gaps between law on books and law in action are especially prominent and why.
The sociology of law also informs core questions and concerns within the discipline of sociology. Whether training attention on the formal institutions of law (courts, police, law firms, regulatory agencies), or formal settings in which law is applied (hospitals, laboratories, corporations), work in this subfield has demonstrated that the importation of laws, rules, regulations, and legalistic ways of organizing social activity is deeply consequential. Clearly, law on the books differs from law in action with highly consequential implications for realizing justice and equity in society more broadly. Legal actors and nonlegal actors within and outside of formal legal institutions exercise discretion in the interpretation and application of formal law in a variety of domains; they thereby contribute to its uneven enforcement and participate in constructing the meaning and content of the law in practice. Individual lawyers, in aggregate, constitute a profession stratified based on differential prestige, training, occupation, and demographic characteristics much like any other profession, which in turn has implications for access to justice more broadly. Whether the diffusion of legalistic approaches has increased access to justice is debatable. What is clear, though, is that legalization has required organizations to add legally trained staff, create new positions and training programs for compliance workers, and establish new routines to track rules and demonstrate compliance (Heimer and Petty, 2010).
Taken together, work in this subfield suggests that formal institutions of law are sites in which broader inequalities can be challenged, but also reinforced, if not amplified. It also suggests that assessing the efficacy and impacts of new laws necessitates looking outside the formal institutions of law to other institutional spheres that are central to the enforcement of legal mandates. Research in the sociology of lawseeks to contextualize and explain the locally contingent and constructed nature of law, its meanings, and its enforcement. Based on insights derived through careful attention to practice and behavior both within and outside of the formal institutions of law, it demonstrates that there is no universal, neutral, or purely mechanical application of the law as it is written – thereby challenging popular ideas about how the law does or should work. In this way, close attention to law in practice reveals important gaps that fundamentally challenge some of the most foundational assumptions about the structure and application of law.
Extending the insights of the subfield to consider law in comparative and global contexts, sociologists of law continue to highlight the uneven distribution of legal resources and access to formal institutions of law, as well as the increasingly complex transfers that move law across both geographical and institutional boundaries, further complicating the insights developed largely in the context of the industrialized countries of North America and Western Europe. Unequal governance systems facilitate and condition the movement of laws, and norms move in tandem with resources from the global North to the global South (Silbey, 1997). Although South–South and South–North transfers do occur, they have less impact on governance and receive a good deal less attention. Like other ‘globalized localisms’ (Santos, 1995), law and legal norms have particular points of origin and serve the interests of particular power holders yet come to be described as global or universal once they diffuse transnationally. In this way, the unequal power relations that undergird many such transfers are obscured.
Many standardized tools and practices are described by their proponents as technically superior, neutral, and universal solutions. The claims on law’s behalf are made especially strongly, suggesting that it is seen as the most universal of universal tools. Yet neutral, universal tools still have to be used to solve particular problems in particular contexts. It is in clarifying the importance of those details about differences among users, settings, and problems and how they are matched with the alleged universality of law that sociology of law makes its most important contribution.
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