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Law in action or living law? Back to the beginning in sociology of law 1

  • David Nelken (a1)

Extract

Sociology of law often seems to be marked by a form of intellectual apartheid. Whilst social theorists refine their conceptual frameworks, those with more practical concerns robustly set out to investigate the ‘law in action’. Mixing of the two approaches is thought likely to impede their necessary separate development. One recent survey of the field concluded that:

‘The trend is likely to be a continuing divergence between its theoretical and practical branches: the theoretical consisting mainly of re-analyses of old sociological approaches to law, and the practical continuing with its problem-solving approach without confronting the theoretical problems implicit in what it accepts as problems and solutions’.

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1

This paper was first presented as ‘Pound and Ehrlich on the Living Law’ at the IVR Conference on Legal and Social Philosophy, Helsinki, 22 September 1983 and as ‘Is there life in Ehrlich's concept of the Living Law?’at a Seminar at the Sheffield Centre for Criminology and Socio-legal Studies, 3 February 1984. I am grateful to the responsive audiences on both occasions for their helpful comments.

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2. B. Roshier and H. Teff, Law and Society in England and Wales (1980) p 13.

3. Roscoe Pound, ‘Law in Books and Law in Action’ 44 Amer Law Rev, 1910, p 12. E. Ehrlich, Principles of the Sociology of Lam (trans W Moll) (Harvard U P 1936) (first published 1913). Ehrlich coined the term ‘Sociology of Law’.

4. See, for example, the early critical views of Sinzheimer, the famous German Labour lawyer and mentor of Otto Kahn Freund, discussed in M. Rehbinder, Die Begründ ung der Rechtsoziologie durch Eugen Ehrlich (1967). Similar criticisms can be found in Wolfgang Friedman's Legal Theory, (1949), pp. 187–188

5. See especially Zeigert, K., ‘The Sociology behind Eugene Ehrlich's Sociology of Law’, Int J Soc of Law 7, 1979, p 225 . Illustrations or the many discussions which confuse Pound's and Ehrlich's distinctions are J. O'Day. ‘Ehrlich's living law Revisited - Further Vindication for a Prophet Without Honour’, Case Western Law Rev, 18, 1966, p 210; J. Harris, Law, and Legal Science (1979), p 27 and W. Chambliss and R. Seidman, Law, Order and Power, (2nd edn, 1983), p 68. The better view is found in D. Schiff, ‘Socio-legal Theory’: Social Structure and Law’, 1976, MLR p 287 at 303–308, but I have found no satisfactory comprehensive survey of Ehrlich's idras in English.

6. Zeigert, op cit, p 231, my emphasis.

7. Zeigert, op cit, p 233, my emphasis.

8. Zeigert, Ibid.

9. Pound, R., Jurisprudence, Vol 1 (1959), p 335 .

10. Pound, R., ‘IntroductionSimpson, S. P. and Stone, J. (eds), Cases and Readings on Low and Society (1948), Vol 1, p xiv .

11. Ibid. In fact, Pound's ideas were also derived from a different European tradition, in particular the work of Ihering.

12. R. Pound, ‘Introduction’ to E. Ehrlich, Sociology of Law, op cit, pp xxxiii-xxxiv.

13. Ibid.

14. Pound, R., Quoting the German theorist Jellinek. Jurisprudence, Vol 3 (1959), p 361 .

15. Ibid, p 362 (my emphasis).

16. McBarnet reviews research employing this distinction in the study of the criminal process and herself reaches the paradoxical conclusion that, far from serving as constraints on official action, the rules of due process are for crime control. See McBarnet, Conviction, 1981.

17. E. Ehrlich, 1936, op cit, p. 493.

18. E. Ehrlich quoted in Rehbinder, 1967, op cit, p 104.

19. H. Kelsen, writing in 1915, quoted in Rehbinder, 1967, op cit. p 104.

20. Sec G. Geis, ‘Sociology and Sociological Jurisprudence: Admixture of Lore and Law’ 52 Kentucky LJ, 1964, p 267.

21. E. Ehrlich, 1936, op cit, esp pp 203–205.

22. This has something in common with the views of his Austrian contemporary, Karl Renner, in The Institutions of Private Law and their Social Functions, ed Kahn Freund (1949). But Renner's legal positivism led him to confine the title law to what Ehrlich called the ‘norms of decision’ whilst his Marxist framework made him focus on the economic forces that shaped the slowly unfolding life of social associations. As a result, he neglected the point that such associations generated their own form of normative life – the ‘living law’.

23. E. Ehrlich, 1936, op cit, pp 164–165.

24. See, for example, N. Timasheff, An Introduction to the Sociology of law, (1939). p 26: and J. W. Harris, ‘Olivecrona on Law and Language – the Search for Legal Culture’ in Tidsskrift for Rettsvitenskup (1979), p 625 at pp 638–640.

25. Ehrlich, 1936, op cit, p 85.

26. Pound's extensive discussion of jury equity only confirms this point because the members of the jury are seen as ‘licensed’ to shape the ‘law in action’ in a way which is not normally open to the ordinary citizens.

27. See McBarnet, op cit, footnote 16.

28. See D. Nelken, The Gap Problem in the Sociology of Law: A ‘Theoretical Review’ in Windsor Yearbook of Access to Justice (1981), pp 35–63 and ‘Sociology of Law vs Socio-legal Studies: A False Divide’. unpublished paper delivered to the Conference on Critical Legal Scholarship, University of Kent, April 1981.

29. See, for example, V. Aubert, ‘Some Social Functions of Legislation’. Acta Sociologica (1961), 10, pp 99–110; J. Gusfield, Symbolic Crusade, 1963; W. G. Carson, ‘Instrumental and Symbolic Aspects of Factory Legislation’ in R. Hood, ed, Crime Criminology and Public Policy pp 107–138.

30. R. Pound, 1910, op cit.

31. Ibid.

32. Ibid.

33. E. Ehrlich, 1936, op cit, p. 488.

34. Quoted by K. Zeigert, 1979, op cit, p 229 from M. Rehbinder (ed), Eugen Ehrlich: Recht und Leben, 1967, p 43. But even here there is a characteristic difference between Ehrlich and Pound. Ehrlich is emphasising the way in which paper rules fail to change long-standing patterns of normative behaviour whereas Pound placed more stress on the extent to which social action transforms the significance of paper rules.

35. E. Ehrlich, 1936, op cit, p 98.

36. See, for example, D. Black, ‘The Boundaries of Legal Sociology’, 81 Yale L J, 1972, p 1086; R. Abel, ‘Law Books and Books about Law’, 26 Stanford L Rev, 1973, p 175; D. Nelken, ‘The Gap Problem’, op cit at footnote 28; and C. Grace and P. Wilkinson, Legal Phenomena and Social Inquiry, 1978. M. McConville and J. Baldwin's latest study of the criminal process, Courts, Prosecutions and Conviction, 1981 is an intriguing illustration of research which has reached the limits of usefulness of the ‘law in action’ approach but which has vet to find an alternative focus or enquiry.

37. R. Pound, 1910, op cit.

38. B. Roshier and H. Teff, op cit, n 2.

39. S. Macaulay, ‘Non-contractual relations in Business: A preliminary study’, Amer Soc Rev, 28, 1963, p 55.

40. E. Ehrlich, 1936, op cit, pp 64–65.

41. The best recent survey, unfortunately as yet unpublished, is J. Griffiths, ‘What is Legal Pluralism?’, a paper presented at the Law and Society Association meeting, Amherst, USA, June 1981. See also the acute overview in Peter Fitzpatrick, ‘Law, Plurality and Underdevelopment’ in D. Sugarman (ed), Legality Ideology and the State, 1983, p 159; Stuart Henry, Private Justice: Towards integrated theorizing in the Sociology of Law, 1983, Ch 2. All these writers pay their respects to Ehrlich but are rather too quick to accept the over-critical account of Ehrlich's ideas in Gurvitch, Sociology of Law (1947), pp 116–122.

42. S. F. Moore, Law us Process, 1978, Ch 3.

43. See Stuart Henry, op cit.

44. See, for example, I. Jenkins, Social Order and the Limits of Law (1980), and Stan Cohen, ‘The Punitive City’, 3 Int J for the Sociology of Law, 3, 1979, p 339; cf D. Nelken, ‘Is there a Crisis in Law and Legal Ideology?’ Journal of Law and Society, 9, 1982, p 177.

45. A good current example of such ad hoc decisions over intervention is the rejection of the Kahn-Freund view that the law is best kept out of industrial relations and union affairs, at the same time that the ‘self-regulation’ of the stock exchange is endorsed.

46. See, for example, D. Nelken, The Limits of the Legal Process: A Study of Landlords, Law and Crime, 1983.

47. G. Tuebner, ‘Substantive and Reflexive Elements in Modern Law’, Law and Society Review, 17 (1983), p 239.

48. M. Freeman and C. Lyon, Cohabitation without Marriage, (1983).

49. Cf P. H. Partridge, ‘Ehrlich's Sociology of Law’ in G. Sawyer (ed), Studies in the Sociology of Law (1961), p 1.

50. The deeper question here is the ontological status of social norms. Are they collectively generated ‘social facts’ which constrain individuals, as Durkheim and Ehrlich presuppose, or ‘reasons for action’, as Pound or Raz claim, or ‘moral commitments’ as Dworkin's critique of Hart's social rule theory of law would have us believe?

51. See the attempt to examine the isomorphism between social action and legislative action in D. Nelken, ‘Legislation and its Constraints: A Case Study of the 1965 Rent Act’ in C. Whelan and A. Podgorecki (eds), Social systems and Legal Systems (forthcoming).

52. I am grateful to Joseph Raz for suggesting this point. See also M. Galanter, ‘How the Haves come out Ahead: Speculations on the Limits of Legal Change’, 9, Law and Society Review (1974), p 95.

53. See, for example, J. Habermas, ‘Systematically Distorted Communication’ in P. Connerton (ed), Critical Sociology (1976), p 348.

54. Ehrlich's ideas can be used to develop what may be called an ecological approach to legal intervention which concerns itself with the mode rather than the merits of intervention. A sound ecological approach to law would see intervention as a continuing process with various forms of feedback, rather than as an ‘event’ with an ‘impact’. It would see the focus of intervention as a ‘social field’ rather than as the actions of an individual or group or a ‘social problem’, would start by mapping the existing normative patterns at work in the field and would attempt to achieve change through communication, learning and adaptation rather than the adjustment of rewards and punishment. Finally, it would recognise that the intervener and his mode of intervention are themselves part of the social field in question and subject to reciprocal change. This mode of intervention (especially when coupled with the requirement of ‘non-distorted communication’) could represent a genuine alternative to present forms of intervention such as those based on social engineering, disciplinary surveillance or professional parcelling out of ‘problems’. See G. Bateson, Steps towards an Ecology of the Mind (1973) and D. Nelken, ‘The Ecology of Norms’, unpublished paper presented to the Centre for Human Ecology, Edinburgh, 25 January 1984.

1 This paper was first presented as ‘Pound and Ehrlich on the Living Law’ at the IVR Conference on Legal and Social Philosophy, Helsinki, 22 September 1983 and as ‘Is there life in Ehrlich's concept of the Living Law?’at a Seminar at the Sheffield Centre for Criminology and Socio-legal Studies, 3 February 1984. I am grateful to the responsive audiences on both occasions for their helpful comments.

Law in action or living law? Back to the beginning in sociology of law 1

  • David Nelken (a1)

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