REFLECTIONS ON THE SOCIOLOGY OF LAW

Reflections On The Sociology Of Law: A Rejection Of Law As 'Socially Marginal'

Abstract

Rejecting the concept of law as subservient to social pathology, the principle aim of this article is to locate law as a critical matter of social structure - and power - which requires to be considered as a central element in the construction of society and social institutions. As such, this article contends that wider jurisprudential notions such as legal procedure and procedural justice, and juridical power and discretion are cogent, robust normative social concerns (as much as they are legal concerns) that positively require consideration and representation in the empirical study of sociological phenomena. Reflecting upon scholarship and research evidence on legal procedure and decision-making, the article attempts to elucidate the inter-relationship between power, 'the social', and the operation of law. It concludes that law is not 'socially marginal' but socially, totally central.

Table of Contents

Abstract2

1. Introduction

Cotterrell (1995: p. 300) has argued in favour of a broad theory-based approach to socio-legal research which understands the position of law as a regulator of social life - the principle function of which centres upon the regulation of specific 'social fields'. Rejecting 'narrow' policy-based interpretations of law (and its regulatory role in social life), Cotterrell advocates a socio-legal analysis of law which characterises social structure as existing independently of social actors' subjective constructions and/or value-based perceptions of what that 'structure' is. Indeed as Henham - in his highly persuasive account of theorising sentencing research - summarises:

'The implication is…that phenomenology does not account for the values existing in society which have become embodied in social institutions and internalised by social actors themselves…If phenomenology cannot allow for the existence of structure except on the level of individual consciousness, it cannot logically make any progress towards delineating their relationship' (Henham, 2000: p. 17).

Adopting and inculcating both Cotterrell and Henham's perspectives on law as a social structure, this article contends that law correspondingly intersects with socially constructed notions of justice, fairness and truth which are all underpinned by the exertion of (forms of) power in society. More specifically, it is argued that research should not examine in isolation substantive practices and formal legal rules and then relate them to other social variables such as power. As social actors influence the development of power structures (and thus legal processes), this article contends that both legal and social aspects of sociological research must be integrated into the study analysis and not separated for the purposes of evaluation. Indeed, it is the view of many socio-legal scholars that legal and court procedures 'remain unintelligible when interpreted in a non-contextual manner which excludes their social, political and policy dimension' (Charlesworth, 2007: p. 35). As such, the principle aim of this article is to locate 'law' as a critical matter of social structure - and power - which requires to be considered as a central element in the construction of 'society'. Wider jurisprudential notions such as legal procedure and procedural justice ([Adler and Asquith, 1981] and ...