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NO SINGLE THEORY EXPLAINS SOCIETY AND LAW; rather, there are many theoretical approaches to these two vast and interrelated topics. Some of these approaches are opposed to one another; others overlap and are combined to explain various aspects of law in society. In this chapter, we consider several historical and contemporary theoretical perspectives on society and law. However, this chapter is by no means comprehensive. It provides a survey or overview of important theories in the field, many of which are discussed in other parts of this book. The focus of this chapter is on how the study of society and law emerged to examine the shift from traditional, premodern social organizations to modern, industrial societies. I also look at recent theoretical contributions to the study of law in society and in our everyday lives.

THE EVOLUTION OF LEGAL SYSTEMS

Formal, codified law emerges as societies grow in size and complexity. Historically, the development of legal systems and the process of modernization—including industrialization, urbanization, democratization, and stratification—are closely linked throughout the world. Legal structures emerge when the social structure of a given society becomes so complex that traditional regulatory mechanisms including folkways and norms, as well as other traditional methods of settling disputes, such as small-town hall meetings, no longer suffice. When societies can no longer depend on informal customs, mores, and conventions, nor can they call upon community, religious, or moral sanctions to regulate social life, people begin to construct formal legal structures to address social problems and keep citizens safe from harm, to control citizens, and to settle disputes between and among citizens. Formal and institutionalized regulatory mechanisms arise when other methods of controlling people’s behavior are no longer sufficient.

Modernization and the Expansion of Law

Several interrelated and sweeping social transformations that emerged in the late eighteenth and the early nineteenth century necessitated changes in the number of laws and in the shape and importance of legal structures in different societies. The Industrial Revolution and the rise of capitalism, the process of urbanization, political revolutions and the democratization of the United States, France and elsewhere in Europe prompted social change in every area of social life. This brought about the need for new laws and entire legal systems to deal with modern social problems.

The Industrial Revolution

The Industrial Revolution began in the mid- to late-1700s and was in full swing by the mid-1800s. Industrialization first took hold in England and is still spreading globally. An industrial society depends on mechanization, or mechanical sources of power, to produce goods. Industrial societies are driven by inventions that facilitate new forms of agriculture and the production of goods and services. Industries also rely on new sources of energy, such as steam and gasoline. In the shift from farm-based, agrarian economies to those driven by manufacturing and mechanization, many societies experienced irrevocable shifts to new social relations and social structures. These changes affected every aspect of life: work, religion, family and child-rearing, homes, and schooling. The shift occurred very rapidly and in ways that must have seemed unrecognizable to those caught up in the massive changes. And, the law stepped into people’s lives in ways that were completely new and increasingly pervasive.

Capitalism

Capitalism as a new economic system drove industrialization. In capitalist systems, factories, raw material, land, and tools are held in the hands of a relative few whose primary goal is to accumulate and expand their capital. Capitalism involves an owning class, the capitalists and a working class, the laborers. The working class, who own nothing but their labor, must exchange their ability to work for a wage. Under capitalism commodity is king. A commodity is any item: a tool, a stand of trees, or a cotton gin that can be exchanged for money. Therefore, in a capitalist economy labor power itself is a commodity. The capitalist brings together several commodities including the means of production, the raw materials, the laborers, and the machinery, to make something of greater value than each of those items is worth individually. With mechanization, goods can be mass produced. The owners of capital expand their holdings—they own more wealth and increasingly expand their production further.

Urbanization

Directly linked to the Industrial Revolution is the process of urbanization —the development of cities. Urbanization involves the wide-scale movement of people from rural, agrarian areas of the country to developing metropolitan hubs. Urbanization began long before the Industrial Revolution and dates back to the Middle Ages and the growth of early European cities. With industrialization, people in large numbers moved in search of paid employment, or wage labor, involved in the mass production of goods and rendering of services. Urban areas tend to be more diverse and heterogeneous than traditional, agricultural-based communities. They are more densely populated, and they present different social problems and challenges that call for centralized legal structures.

Political Revolutions and the Rise of Democracy in the United States (1775–1783), France (1787–1799), and Other Parts of Europe

Democracy simply means government by the people—rule by the citizens for the citizens. No two democracies are alike. The American Revolution of 1775–1783 gave rise to rapid and irrevocable social changes, which necessitated laws to address new social relations under a newly formed democracy. The establishment of individual rights, liberties, and the pursuit of happiness took priority and replaced the rule of the monarchy. In order to establish a newly independent nation, and state governments for the 13 original colonies, law proliferated. Law was called upon to establish territories and trade regulations, to institute property and tax rules, to build and maintain an independent army, and to generally formalize and codify what it meant to be an independent nation. These vast changes permeated all aspects of public and domestic life.
Many leaders of the French Revolution admired the American Declaration of Independence and drew inspiration from it. The French also participated in and supported the American fight for independence. In France, with the toppling of the French monarchy in 1789, changes proved to be so rapid that some social theorists, such as Friedrich Karl von Savigny an eighteenth- century legal scholar and August Comte, the so-called father of sociology, feared that chaos would replace the rule of the monarchy (Rodes 2004; Schaefer 2011). France was the most populated country in Europe at the time. The profligate spending of King Louis XVI brought the country to the brink of bankruptcy, and urban poor and rural peasants like were dying of hunger due to droughts, poor harvests, and soaring food prices. The French Revolution had many causes, but it was influenced by the American Revolution and by philosophers of the Enlightenment as well as scholars of law and government, such as Jean-Jacques Rousseau (1712–1778), Montesquieu (1689–1755), and Voltaire (1694–1778), all of whom emphasized individualism, as well as reason, logic, and science over tradition and religion.
Taken together, these major historical changes make up the process of modernization: the shift from traditional, agrarian-based economies to modern, industrial-based economic structures in which democracy prevailed. This massive, tumultuous period also saw the rise of modern systems of law.
These major transformations occurred rapidly and caused people to think about the social world in new ways. Several new academic fields of study emerged during this period of modernization to grapple with and explain the massive social changes under way. Sociology developed to study the effects of modernization on the social structure and social relationships, and to try to understand social problems, the family, immigration, and racial and ethnic relations. Out of the larger field of sociology came demography: the study of population growth and transformations. Criminology and sociolegal studies emerged to study new issues related to law-making, lawbreaking, and the social consequences of both.

Traditional Legal Systems

“To understand law one must view it in its social context and not as something which can be described by the analysis of a sample, however large, of cases alone” (Nader 1964:408).
Traditional or primitive legal systems are found in hunting and gathering societies as well as some simple, subsistence farming communities. The word “primitive” as used here means in the early stages of development. In traditional or primitive legal systems, there are some distinctions made between substantive law and procedural law. Substantive law addresses rights, duties, and prohibitions. Procedural law considers how law is to be administered, enforced, and changed over time. In traditional legal structures, judges are typically village chiefs, elders or religious leaders, or even people who community members see as capable legal listeners (Nader 1964). Courts might be held in town hall-like structures or they can be temporary; they are set up to address legal issues and then dispersed after the matter is settled (Nader 1964, 1965).
 
In traditional societies, no strict separation exists between law and religious beliefs. Laws are typically not written and are intertwined with customs, traditions, religious and spiritual beliefs, and ancient norms. Law is called upon to settle disputes, to coordinate social relationships, to control behavior, and to enforce kinship and other rules (Nader 1965; Hoebel 1954).

Transitional Legal Systems

Transitional legal systems are found in advanced agrarian and early industrial societies where the economic, educational, and political systems are increasingly separated from kinship relationships (Vago 2012). In transitional legal systems, there are basic legal structures including:

• Some written laws
• Courts
• Enforcement agencies
• Legislative structures
• Public/Private law distinctions
• Criminal law distinguished from torts (private wrongs)
• Procedural/substantive distinction.

 
But these structures are newly established and not as advanced and specialized as law under modern, industrialized nations. Transitional legal systems can take many shapes and forms; they are by definition transitory and thus are often unstable, as with the socialist legal systems discussed in the previous chapter. In addition, postcrisis transitional legal systems can arise anywhere in the world after wars or significant conflict. For instance, in 1999, both East Timor and Kosovo emerged from horrifying conflicts.
In 1999, the Balkan country now known as Kosovo emerged from widespread and brutal ethnic cleansing campaigns by Serbian and Yugoslavia militia forces. In the same year, in the Southeast Asian state of East Timor, a vote for the country’s independence from Indonesia after decades of brutal occupation sparked a campaign of “killing, burning, and looting” by forces that supported the integration of East Timor into Indonesia (Strohmeyer 2001). In both cases, the United Nations was called upon to quickly build transitional legal systems to fill the voids that years of conflict had opened. The transitional legal systems were called upon to restore order and to set each region on a path to nation-building (Strohmeyer 2001). Both cases highlight the importance of clearly defined legal systems, even if they are transitional and somewhat rudimentary. As legal scholar and humanitarian Hansjöerg Strohmeyer said of both regions:
The experiences of the United Nations in Kosovo and East Timor have shown that the reestablishment, at a minimum, of basic judicial functions— comprising all segments of the justice sector—must be among a mission’s top priorities from the earliest stages of deployment. Indeed, the absence of a functioning judicial system can adversely affect both the short- and long-term objective of peace-building efforts, including the restoration of political stability necessary for the development of democratic institutions, the establishment of an atmosphere of confidence necessary for the return of refugees, the latitude to provide humanitarian assistance, the implementation of development and reconstruction programs, and the development and reconstruction of an environment friendly to foreign investment and economic development. The lack of adequate law enforcement and the failure to remove criminal offenders can inevitably affect both the authority of the mission and the local population’s willingness to respect the rule of law. (2001:60)
 
This excerpt illustrates the importance of examining the social context in which legal systems are constructed. A legal system born of brutal conflict and built by an outside body—such as the United Nations—looks quite different to one that has evolved over years of relative stability. The passage also highlights the importance of legal structures in bringing about stability and promoting the rule of law. Finally, Strohmeyer shows that formal, codified law must be backed by adequate law enforcement and sanctions for it to hold up in extremely difficult and contentious circumstances.

Modern Legal Systems

Modern legal systems contain all of the structural features of transitional systems but in greater numbers and in more complex, specialized arrangements. In modern societies, law grows in size, and it grows increasingly centralized and bureaucratized.

• There is a proliferation of public and procedural laws (or administrative law).
• Statutory law becomes more important than common law.
• Legislation becomes a more acceptable method of adjusting law to social conditions.
• There are clear hierarchies of laws and courts, from local/regional to constitutional law.
• Courts become more important and are used with increased frequency.
• The legal profession becomes more centralized and credentialized with licenses (e.g., the American Bar Association as credential-granter).
• Police forces are large and differentiated: town, county/parish, state, Federal (e.g., Federal Bureau of Investigation).
• Additional regulatory agencies emerge and proliferate, such as: the Food and Drug Administration, the Environmental Protection Agency, the Federal Trade Commission, Occupational Safety and Health Administration.

In modern legal systems, the rule of law prevails, and rules and regulations apply to everyone. Rights and duties stem from transactions or contracts, and legal norms are universal. Ideally, the law should be predictable, uniform, impersonal, and rational. Law is separated from religion and belief systems, kinship groups, and the monarchy. The nation-state administers law, and legislative, judicial, and executive functions are separate and distinct in modern law.

THEORIES OF LAW AND SOCIETY

As law was growing and changing in the process of modernization, theories of law and society also emerged and proliferated. These theories attempt to answer questions about the development of law in different societies, the various functions of law in societies, how law changes over time, and who benefits from laws and legal structures.

Early European Scholars of Law

For centuries in Europe, law was considered to be an absolute and autonomous entity unrelated to the social structure in which it existed (Deflem 2008). This idea was based on the notion of natural law —law viewed as a universal entity, applicable to all humans. The origins of natural law are traced back to ancient Greece. Aristotle maintained that natural law had a universal validity based on pure reason, free of passion, and subjectivity. St. Thomas Aquinas saw natural law as part of human nature and the way in which rational humans participate in the eternal laws of God (Vago 2012).
The idea of natural law is based on the assumption that, through reason, the nature of human beings can be known and that this knowledge can provide the basis for the social and legal ordering of human existence. Natural law is considered superior to law enacted by humans. Under the influence of natural law many European scholars believed that law in any given society was a reflection of a universally valid set of legal principles, and not socially constructed by humans (Deflem 2008).
 
Starting in the mid-eighteenth century, and through the mid-nineteenth century, the idea of natural law was called into question and largely displaced by evolutionary interpretations of law and legal positivism. Legal positivism is a scientific approach to law that examines objective social conditions, such as how culture and religious beliefs affect legal norms. Early European scholars of law and society employed legal positivism to make sense of the law as a human construction and not as a universally given set of standards. Legal positivism asserts that the law can be studied as any subject can be studied—through careful examination, collection of data, and theorizing.

Baron de Montesquieu (1689–1755)

Charles-Louis de Secondat, Baron de Montesquieu was a parliamentarian in Bordeaux, France, who argued against the absolutism of the French monarchy and also challenged the notion of absolute natural law. He believed that legal structures should be specific to a society’s culture. Law must fit within its surroundings. He wrote The Spirit of Laws (1748) in which he argued that law results from a number of social and cultural factors such as customs, the economy, and the physical environment—the climate and the soil on which it stands (Vile 1998).
Montesquieu is most famous for his doctrine of the separation of powers: the legislative branch enacts new laws, the judicial branch interprets the laws, and the executive branch enforces and administers laws (Deflem 2008). While there is some debate over who first introduced the notion of the separation of powers, Montesquieu’s name is most often associated with this important doctrine and he contributed significant ideas that lent to its longevity and power (Vile 1998).
In The Spirit of Laws, Montesquieu famously said, “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go” (1748, Book 11:4). For Montesquieu, the separation of powers is necessary in a democracy wherein power should not become too centralized. Arranging law into three separate branches of governance kept the system in check and allowed for specialization within each branch.

Herbert Spencer (1820–1903)

Herbert Spencer was an English railway engineer turned social theorist of the mid- to late-1800s. His ideas were perhaps more popular in the United States than in his home country. In his book, Social Darwinism in American Thought, Richard Hofstadter points out that “England gave Darwin to the world, but the United States gave to Darwinism an unusually quick and sympathetic reception … thinkers of the Darwinian era seized upon the new theory and attempted to sound its meaning for several social disciplines” (1969:4–5). The same could be said of Herbert Spencer.
Darwin’s On the Origin of the Species was first published in 1859, and from that point on, popular magazines such as Appleton’s Journal, Popular Science Monthly, and The Atlantic Monthly, as well as daily newspapers, published articles on natural selection and Darwinism (Darwin 1859; Hofstadter 1969:18–22). Spencer was strongly influenced by the evolutionary theories of Charles Darwin, so much so that he became known as a social Darwinist. Some argue that Darwin may have been influenced by Spencer. However, Spencer’s social evolutionary ideas were circulated years before Darwin published On the Origin of the Species (Shapin 2007). While often attributed to Darwin, Spencer introduced the phrase, “survival of the fittest” (Howerth 1917:253). Spencer believed that societies evolve from primitive, barbaric forms to civilized social orders along natural, evolutionary stages. Spencer embraced social evolutionary theory and saw it operating everywhere—in the development of societies, of governments and commerce, in language and literature, in science and art (Shapin 2007). The language of evolution, progress, and natural selection—and Herbert Spencer’s adage “survival of the fittest” —proliferated in subjects “quite remote from science” and became “a standard feature of the [American] folklore of individualism” (Hofstadter 1969:3–4, 50).
Spencer traveled to New York City in the 1880s as a guest of Andrew Carnegie, the Scottish-American steel tycoon and philanthropist. Carnegie saw Spencer as a friend but also a guru of sorts. Spencer’s unyielding belief in laissez-faire capitalism was embraced by Carnegie and other American captains of industry because their success appeared as “natural”—or preordained.
Spencer believed in the free will of individuals above all else. Any effort to regulate industry or aid the poor would only interrupt the natural order of things. In Spencer’s words, “idiots, imbeciles, lunatics, paupers, and prostitutes” would only proliferate and tax societal resources (Spencer 1884:132). Welfare degraded morals and overall fitness because it encouraged dependency.
While Andrew Carnegie has been called the father of American philanthropy (Theroux 2011), he did not believe in giving money to those he deemed unworthy, or unfit in Spencerian terms. He donated only to what he considered worthy causes, such as public libraries and educational foundations that could help people better themselves.
Spencer was a proponent of unregulated economic competition. He opposed most forms of public intervention into social problems; he believed they only interrupted evolutionary progress. Spencer argued that laws should uphold individual rights and the rights to private property. The law should not be seen as an equalizer in the survival of the fittest. Rules, regulations, and laws should be kept to minimum to allow the steady march of evolutionary progress in all aspects of society.

Sir Henry Sumner Maine (1822–1888)

Also influenced by evolutionary theory, legal scholar Sir Henry Sumner Maine was born in Scotland and died in Cannes, France. In his most famous work, Ancient Law, Maine was one of the first scholars to emphasize the study of law through history and historical methodologies (1861). In historical studies of different types of law, Maine saw the growth of the rights of individuals over the rights of the family, group, or community. This, he believed, was a basic component of the development of societies. Maine also saw the importance of the contract over customs and traditions. He viewed this progression as an evolutionary shift from status to contract (Sutton 2001).
While influential, Maine’s sociolegal theories have been criticized for assuming that all legal systems will develop along the same path and through the same stages as Western, developed law (Sutton 2001). His bias toward the type of modern legal system enjoyed by people of free will and individual rights may have prejudiced his view of less-developed, traditional legal systems.

Classical Sociological Theories of Society and Law: Durkheim, Marx, and Weber

Sociology as a distinct discipline emerged in Europe in the early 1800s, a time when societies saw vast social changes and social upheaval related to the processes of modernization. French philosopher August Comte (1798– 1857) is often credited with being the father of sociology since he first coined the term. For Comte, a positivist, sociology was the scientific study of society (Schaefer 2011). He believed that societies could be improved and made more stable by careful observation, examination, comparison, descriptive study, and experimentation.
Sociological discussions of law in society typically fall into two categories of macro-level conceptions: the consensus perspective and the conflict perspective.
While this dichotomy between the two main paradigms is not exhaustive—it does not include all sociological approaches to society and law—it is a useful conceptual framework in which to view sociological theories. In other chapters of this book, I will discuss different theoretical approaches to laws, such as symbolical interactionism, and social constructionism will be covered in Chapter 5: Lawmaking and the Social Construction of Laws.

Emile Durkheim (1858–1917)

In sociological terminology, Durkheim was a consensus theorist, or a structural functionalist sociologist. Durkheim contributed a methodology for studying changes in social institutions and the larger social order. Influenced by Auguste Comte, Durkheim used a positivist approach —a scientific, rational approach to the social world—and was interested in establishing causality, in showing that one variable causes another to change. For instance, as societies grow in size, they also grow in complexity. Durkheim saw this as a social fact —an underlying pattern of social organization and moral beliefs that shapes our expectations of one another. Social facts are also reproduced through social institutions such as government, courts, and education. Durkheim believed the law performs several vital functions in society and as societies increase in complexity, law becomes more important, more pervasive, and increasingly differentiated and specialized.
Durkheim outlined his ideas about society and law in his book, The Division of Labor in Society ([1893] 1984). He viewed law as a measure of the type of solidarity found in society. Solidarity for Durkheim meant the persistent and ongoing expectations that people establish with one another that allow them to take their social world for granted. It is rooted in repetitive patterns of association in families, workplaces, and in the marketplace, as in a small, traditional village.
Repressive law in traditional society revolves around punishing the criminal for the crime but also for the harm caused to the social order—the collective conscience of society (Sutton 2001). Restitutive law corresponds to modern, industrialized societies. Durkheim viewed restitutive law as restorative, as bringing back social order and group cohesion after the upset of the crime (Sutton 2001).
Durkheim’s distinction between mechanical and organic solidarity and repressive and restitutive law is not a strict dichotomy. Even today, in our modern, complex society, we seem to move more and more toward repressive forms of law and punishment. We imprison over two million people, often without any significant chance at rehabilitation; we treat juveniles as adults; we get tougher and tougher on crime. Many states still execute offenders. In other words, as with the earlier work of Sir Henry Sumner Maine, this seemingly clear, evolutionary progression from repressive to restitutive legal systems is perhaps not so clear and stage-like. Laura Nader’s anthropological work on law in a traditional Zapotec village illustrates that restitutive law can be found in traditional communities and that repressive forms of law can be found in modern societies, such as our own punitive system (Nader 1964). As Durkheim himself wrote, “ … the essential elements of punishments are the same as they were in primitive societies. Punishment has remained, at least in part, a work of vengeance” (Thompson 1995:78).
In the United States, the juvenile justice system began over 100 years ago as a way to separate juvenile offenders from the adult population. The goal was to treat young offenders as capable of rehabilitation. Because of their youth, they were thought to be more amenable to rehabilitation and change. However, in the latter part of the twentieth century and into the twenty-first century, our societal approach has grown more repressive, treating children as young as 13, 14, and 15 as adults in the adult court systems and adult prisons (Ecenbarger 2012). Recently, we have seen a bit of a sea change back to the idea that young offenders must be treated differently. For example, several states have overturned life sentences without parole for juvenile offenders. Therefore, Durkheim’s idea that as societies evolve and become more advanced they also grow more rehabilitative and reform-minded. This does not prove to be the case in many aspects of the U.S. criminal and juvenile justice systems.

Karl Marx (1818–1883)

Karl Marx studied law and literature at German universities. He was a philosopher, political economist, and historian, and has been claimed by sociologists as one of their own. Marx focused on the economic structure of societies and the modes of production of commodities—anything deemed valuable by society. Law is rooted in the material, economic forces of society. Marx’s approach to law and society can be briefly summarized as follows:

• Law is the product of evolving economic forces.
• Law is a tool used by the ruling class to maintain its property and its power over the lower classes.
• In a true communist view of law, the idea of law as an instrument of social control will no longer be necessary and will eventually fall away.

To quote Marx and his coauthor, Friedrich Engels, in the Communist Manifesto [1848] 1993, “Your jurisprudence is but the will of your class made into the law for all, a will whose essential character and direction are determined by the economic conditions of your class” (p. 25). Marx’s critical approach to law is rooted in a concern with freeing people from the burdens of unnecessary labor, poor material conditions of life, and patterns of thought that block their understanding of, and participation in, shaping their lives.
Marx focused on how law constructs social relations that separate people from one another, allowing for the exercise of power by those who own and control the resources over the people who work with those resources to make commodities (Marx and Engels [1848] 1993). Law defines and supports social classes on the basis of property, contracts, and their relationship to the means of production. Contracts and property are two main legal concepts under capitalism:

1. Contracts are written agreements between the owners and the workers and between the purchasers and the sellers of products. Contracts can also regulate relations between and among businesses.
2. Property is essential for capitalism to exist. Property is a relationship—a person or corporation owns a commodity, an item of value. Property must enhance in value; it must be exchanged. Property laws are enforced by the state to protect those who own it against those who do not.

Marx’s influence on law and society can still be seen in critical studies of the sociology of law. For instance, William Chambliss’ “A Sociological Analysis of the Law of Vagrancy” exemplifies a Marxist, conflict perspective (Chambliss 2004). Chambliss studied how vagrancy—homelessness in today’s terminology—laws facilitated cheap labor for wealthy landowners during the period in England when the system of serfdom was collapsing. The first vagrancy law, passed in 1349, threatened criminal punishment for all those who were able-bodied and yet unemployed. The poor were forced to accept employment at a low wage or go to prison. The wealthy landowners were ensured an adequate supply of labor at cheap wages. Similar laws were passed to keep the poor and unemployed out of areas where labor was not needed so that certain areas, townships, or boroughs would not have to pay for alms for the poor—any form of welfare or social services for those in need (Chambliss 2004). Chambliss’ study of vagrancy laws is one example among many illustrating Marx’s influence on contemporary studies of society and law.

Max Weber (1864–1920)

Max Weber, also a German professor of economics, is most often placed in the conflict paradigm within sociology. Weber played a crucial role in the development of sociology as a distinct discipline and field of study. We have already discussed some of Weber’s contributions to the study of law in Chapter 1, but his influence on the sociology of law bears further consideration here.
An important aspect of Weber’s approach to the study of society and law is his distinction between rational versus irrational dimensions of law, along with his distinction between substantive and formal dimensions of law. These terms are based on Weber’s notion of ideal types, or a conceptual framework or inventory of concepts describing the phenomenon being studied. Using Weber’s two basic dimensions of law, we can classify legal decision-making from least rational to most rational. In addition, formality is the independence of legal institutions and procedures from all other social institutions, such as religion, family, politics, and economics. Substantive law is the opposite of formal law; it is tied either to a political order or a moral religious order. It is not autonomous and independent (Sutton 2001).
Rationality is the reliance on specifically legal principles and rules for making decisions that are logically applied to particular cases. Rational law requires the highest degree of institutional, procedural, and intellectual independence of law (Sutton 2001).
Rationality is:

• Systematically organized
• Rule-bound
• Based on logical interpretation of meaning
• Oriented toward intellectual pursuits of the truth.

Irrationality is:

• Not systematic
• Not written
• Based on customs, religious beliefs, or folk wisdom

Using formality and rationality, Weber constructed four types of law that can be used to analyze various legal system.
Weber has proven so influential to the study of law and society that some even consider him the founding father of the sociology of law (Deflem 2008). His typologies of law, methodological frameworks for the study of law, and theories about the roles of law in modern society provide rich intellectual ground that scholars are still sowing and reaping.
 

Sociolegal Theorists

Sociolegal theories are schools of thought within jurisprudence, the scientific study of law, that view law as integral to social life. For sociolegal theorists, law cannot be understood apart from the realities of social life. These theories are heavily influenced by the social sciences, most notably sociology, economics, and social psychology.
 

Albert Venn Dicey (1835–1922)

Albert Venn Dicey was an Oxford-educated English sociolegal scholar from a wealthy background. Dicey is best known for his doctrine of the rule of law.
 
In Dicey’s Rule of Law:

1. No one is punishable except for a distinct breach of law and therefore the rule of law is not arbitrary.
2. The rule of law means total subjection of all classes to the law of the land, as administered by the court.
3. Individual rights derive from precedents rather than from constitutional codes (Vago 2012:52).

In 1905, Dicey published Lectures on the Relation between Law and Public Opinion in England During the Nineteenth Century, which explored his ideas about the role of public opinion in shaping law and how citizens can take part in public life and even shape public policy (1905). He argued that public opinion tends to change slowly and the law should do so as well.
 

Oliver Wendell Holmes, Jr. (1841–1935)

Oliver Wendell Holmes, Jr. was Boston-born and bred. He attended Harvard Law School and then taught there as a professor. He was appointed to the Supreme Court in 1902 and remained there for three decades, making him unique at the time because he was a scholar of law before he was appointed as a Supreme Court Justice (Sutton 2001). Wendell Holmes was one of the founders of legal realism, a school of thought that argues that laws should be grounded in reality and should benefit the larger society. 

Basic Tenets of Legal Realism

• Judges are responsible for formulating law, rather than just finding it in the law books.
• Judges make decisions based on what is right and just, before sorting through legal precedents, which can be found to support almost any decision.
• Values, personal background, and preferences are part of the process of legal decision-making.
• Judges must know the historical, economic, and political aspects of the law in order to fulfill his/her functions.
• There is no absolute certainty in the law (Holmes 1897).

Holmes argued for legal pragmatism, meaning he believed the law only made sense if it worked in its practical applications. Laws are enacted by human beings for human beings and therefore must make sense in their daily lives.

E. Adamson Hoebel (1906–1993)

1. Adamson Hoebel was born in Madison, Wisconsin, and attended the University of Wisconsin as an undergraduate. He earned his master’s degree at New York University and his PhD from Columbia in the field of anthropology. Hoebel was president of the American Anthropological Association and was very influential in the field of anthropology of law and in the study of native North American groups. He wrote The Law of Primitive Man (1954) in which he noted that there is no straight line of development in the growth of law, unlike Spencer, Durkheim, and other previous theorists. For Hoebel, the law does not evolve in a simple linear, progressive fashion. Further, he was one of the first legal scholars to illustrate that law exists in even simple, primitive societies. Hoebel argued that the law does change and moves through stages, which are not arranged along a singular, evolutionary line. Legal systems grow out of the needs of the structure in which they are found (Hoebel 1954).

Hoebel outlined the following societies and corresponding legal systems:

• Lower Primitive Societies, hunter-gatherer societies:
• Face-to-face relations
• Ridicule, taboo, and fear as forms of social control
• Physical violence as sanctions.

More Organized Hunter-Gatherer Societies with some settled agriculture (transitional societies):

• Size increases → Complexity increases
• Divergent interests → Conflict, tensions arise
• Private law emerges and spreads
• Tribes or groups develop hierarchies of power and authority (based on hereditary lines).

Gardening and Agriculturally Based Tribes (later transitional):

• Larger groups, societies
• Elaboration of law—more laws emerge and law grows in complexity
• Face-to-face interactions are not possible with all members of a society
• Many competing interests
• Allocations of rights, duties, privileges, powers, property (Hoebel 1954:316–319).

While these societies are arranged in increasing complexity, for Hoebel this is not a stage-like, linear progression. The trend of law is one of increasing growth and complexity in which the tendency is to shift the imposition of legal sanctions from the individual to the kinship group and then eventually to the larger community and then society. However, this does not mean that various systems are not found within a given society, there is overlap (Hoebel 1954).

Donald Black (1941–)

Donald Black is a contemporary sociolegal theorist. He received his doctorate in sociology at the University of Michigan in 1968. Black has taught at both Harvard and Yale law schools and now works as a professor of social sciences at the University of Virginia. His most notable books are: Sociological Injustice (1989), The Behavior of Law ([1976] 2010), and The Social Structure of Right and Wrong (1993). Black wrote, “Law is governmental social control” (1976:2). In his theoretical approach, he divided the law into four styles: penal, compensatory, therapeutic, and conciliatory. The first two, penal and compensatory, are adversarial forms of law with a winning and losing party. The second two, therapeutic and conciliatory, Black (1976) termed remedial. They help sort out or ameliorate social problems.
Elements of two or more of these styles may appear in a particular case, such as a drug addict convicted of possession and sentenced to jail time (penal law) who may also be granted probation contingent upon a attending a rehabilitation program (therapeutic).
Like Hoebel, Black’s research involves cross-cultural analyses of laws in different societies. Black views law as a quantitative variable—it can be measured objectively by the frequency with which statutes are enacted, regulations are issued, complaints are made, offenses are prosecuted, and damages are awarded; punishment is meted out in a given society (Vago 2012). The law’s quantity varies from society to society and from historical period to historical period.
Modern, stratified societies possess more law than simple societies. Wealthy people have more access to the law than poor people and make use of it more frequently, and the poor are more often punished by the law. According to Black, all of these social issues can be measured quantitatively. Black also believes that law is a social process that is inherently biased. Differences in social status affect law at every turn, not just in terms of who is punished but also with regard to how lawyers are perceived, how jurors interact, and who has access to the legal process. Bias and prejudice are inherent in these social processes.
Since he viewed law as quantifiable, Black developed several propositions that explain the shape, quantity, direction, and style of law using five variables of social life:

• Morphology:shape of society—the aspects of social life that can be measured by social differentiation or degree of interdependence, e.g., division of labor
• Stratification:inequalities of wealth, power, privilege
• Culture:the symbolic aspect of social life—ideas, beliefs, etc.,
• Organization:capacity for collective action, degrees of centralized governance, economy
• Social Control:the normative aspects of society—how society responds to deviant behavior (Vago 2012).

According to Black, all of these elements of law are quantifiable and can be measured and studied as discreet variables using a scientific, positivist approach.
 

CURRENT THEORIES OF SOCIETY AND LAW

Today there are many approaches to the study of society and law that draw influence and inspiration from earlier theorists discussed in this chapter. Each of these new approaches advances our knowledge of law in society while providing critique and pushing law and legal scholarship to do more in bringing about positive social changes. Among these are: providing more access to the law for poor and minority groups, guaranteeing equality before the law for all individuals, and recognizing the injustices that have been perpetrated in the name of law.

Critical Legal Studies (CLS)

The emergence of the new field of Critical Legal Studies, or CLS, is traced back to Yale Law School faculty and students of the 1960s. CLS is influenced by Marxism and legal realism. CLS scholars are critical of the power of law and the monopoly over the law that the American Bar Association and other professional organizations have in controlling expertise, accreditation and access to legal education.
Roberto Mangabeira Unger is a leading critical legal scholar. He teaches at Harvard Law School, where he is one of the youngest professors ever to have received tenure, and taught President Barak Obama when he was a student at Harvard. Unger was born in Rio de Janeiro and raised by a Brazilian mother and a German father in Brazil. Unger wrote Law and Modern Society (1976) in which he uses Max Weber’s theories on rational legal systems. His main thesis is that the development of the rule of law— law committed to general and autonomous legal norms—can take place only when competing groups struggle for control of the legal system. For example, Unger contends that
the unequal distribution of knowledge, power, and resources that employers have over employees, that producers have over consumers, and that leaders of corporations have over local communities become subject to state action because privately based inequalities have wide public consequences and no democratic justification (Turkel 1996).
Influenced by both Weber and Marx, Unger fears a dissolution of the rule of law under unbridled capitalism, where large corporations are allowed to take from society but not required to give back in return (Unger 1976).

Feminist Legal Theory

Feminist legal theory (FLT), or feminist jurisprudence, examines the interaction between law and gender. Topics addressed by feminist legal scholars includes workplace discrimination, reproductive rights and the body, domestic violence, sexual harassment, rape, prostitution and sex work, education, sports and Title IX, and the public private split in law and society (Levit and Verchick 2016). We will be looking more closely at feminist legal theory in Chapter 10: Gender, Inequality, and Law.

Critical Race Theory (CRT)

Critical Race Theory (CRT) addresses questions of law and racial discrimination, oppression, difference, and inequality. CRT also looks at the lack of diversity in the legal profession. The term CRT was coined in 1989 at a workshop on race theory held in Madison, Wisconsin. In Chapter 11: Race, Inequality, and Law, we will explore Ian Haney Lopez’s (1996) White by Law: The Legal Construction of Race as well as other scholarship from the field of CRT.

Intersectional Approaches to Society and Law

Intersectional theory is a relatively new approach to studying and understanding social stratification. It is most often employed to analyze race along with other social positions, such as gender, class, and sexuality. In criminology, intersectional analysis has primarily been used to address the experiences of black women and girls in urban settings. However, more recent studies have applied intersectionality to other groups, such as rural women as both victims and perpetrators of crime (Carrington et al. 2014; DeKeseredy et al. 2016). In her 2015 book, Intersectionality and Criminology: Disrupting and Revolutionizing Studies of Crime, Hillary Potter notes that whiteness is rarely discussed in studies of crime. She states, “White is a race.
Consequently, criminologists should, at least, contemplate how being white may influence individuals’ experiences compared with those of other races” (2015:150).
Intersectionality recognizes that people are situated in differing locations within the social structural hierarchy that attach to disadvantages and advantages. Gender, age, race, socioeconomic status, sexuality, and disability affect one’s location in the social structure, social identity, and access to power. “Intersectionality is strongly tied to real-world activism” (Potter 2013:314).
Potter (2013) notes that while intersectionality began with black feminist critiques of racial and gender discrimination, the perspective has now expanded to incorporate various social statuses. Kimberlé Crenshaw, the legal scholar who coined the term “intersectionality,” stated that the concept of intersectionality “can and should be expanded” by factoring in issues such as “sexuality, nationality, and class, among other identities” (Crenshaw 1991; Potter 2013:309) In her 2015 book, Intersectionality and Criminology, Potter states, “I strongly believe the principal goals of intersectionality’s origination are needed in considering all lived experiences, regardless of the identities individuals hold” (2015:79). Later in the same book Potter (2015:105) asserts, “all individuals can be considered from an intersectional framework. Simply because a research sample comprises only white men does not mean that race and gender and sexuality do not need to be considered” (2015:105). Crenshaw (2011:230) also argues that all individuals exist “within a matrix of power.” She states, “Intersectionality represents a structural and dynamic arrangement; power marks these relationships among and between categories of experience that vary in their complexity” (2011:230). Similarly, sociologist Patricia Hill Collins (2009:21) uses the notion of matrix of domination to examine how “intersecting oppressions are organized” into domains of power that appear and “reappear across different forms of oppression.” Collins (2009:26) highlights the “structural, disciplinary, hegemonic, and interpersonal domains of power” and how they control and oppress individuals and groups differently depending on intersections of race, class, gender, nationality, and sexuality. Intersectionality will be given a more thoroughgoing discussion later chapters.
 

CHAPTER SUMMARY

• This chapter examined several historical and contemporary theoretical perspectives on society and law, focusing on how the study of society and law emerged to examine the shift from traditional, premodern social organizations to modern, industrial societies.
• Formal, codified laws evolved along with other social changes of modernization.
• As societies grow in size and diversity, formal social control—including law—is needed along with informal social control to keep citizens safe, to regulate society, and to settle disputes.
• The modernization process included the Industrial Revolution, the expansion of capitalism and stratification, urbanization, the American and French Revolutions and democratization.
• Traditional legal systems were replaced with transitional legal systems, and then with modern legal systems.
• Early European scholars of law, such as Montesquieu, Spencer, and Maine, offered theories of society and law that challenge notions of natural law.
• Classical sociological theories of society and law from Durkheim, Marx, and Weber examined the role of law in the development of modern societies and the roles that law plays in those societies.
• Sociolegal scholars, such as Venn Dicey, Wendell Holmes, and Hoebel view law through the lens of science: they argue that law cannot be understood as separate from the social world in which it is embedded.
• Contemporary approaches to the study of society and law offer critical perspectives on law and view law as a tool to bring about equality and positive social changes.
• Critical legal studies, feminist legal theory, critical race theory, and intersectionality were discussed as current scholarly, theoretical approaches to society and law.

 
KEY TERMS
capitalism
commodity
contracts
Critical Race Theory
culture
democracy
feminist legal theory
formality
ideal types
industrialization
legal positivism
legal pragmatism
modernization
morphology
natural law
organization
positivist approach
procedural law
property
rational law
rational versus irrational dimensions of law
rationality
repressive law
restitutive law
rule of law
social control
social fact
solidarity
stratification
substantive and formal dimensions of law
substantive law
urbanization