Page 91 - The ISA Handbook in Contemporary Sociology

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62 THE ISA HANDBOOK IN CONTEMPORARY SOCIOLOGY

clients, interviewing witnesses or drafting Mainstream sociology and law
documents which require the use of non-
legal knowledge and social skills. Also, prac- Sociology does not consist of rules if by a
ticing lawyers have a pragmatic understanding ‘rule’ we mean a binary method of making
of law, which is aimed at settling cases to decisions or a set of standards for guiding
their advantage. Legal rules and doctrine are action. Instead, it consists of assumptions,
only two among a number of devices (or concepts, ideas and methods, none of which
‘resources’) that the practicing lawyer is treated in a formalistic manner or as an
employs if, and in so far as, they serve to element of a normatively sealed system.
negotiate the boundaries of the law in his or Sociology’s constitutive concepts and meth-
her favour. Legal doctrine is abandoned in ods are understood and applied reflexively
favour of other measures (for example delay and in accordance with the general criteria of
tactics) when it no longer serves to bring social scientific enquiry. That is also why, in
about the desired end (Banakar and Travers, contrast to doctrinal studies, sociology
2005: 9). allows many competing sets of theoretical
Most scholars agree that doctrinal studies and methodological approaches.
are of the law, i.e., they are born out of the Sociology is ultimately driven by sociolo-
practical needs of the law and serve certain gists’ curiosity about social life as reflected
normative needs of legal practice. However, in their attempts to explain and understand
we find little agreement on how jurispru- social reality. The most valuable asset of a
dence, which appears to be about the law, is sociologist is, to use Erving Goffman’s
related to legal practice. Some theorists words, ‘the bent to sustain in regard to all
see much of jurisprudence as ‘theory-talk’ elements of social life a spirit of unfettered,
which at best conveys a better understanding unsponsored inquiry and the wisdom not to
of the context in which law is practised look elsewhere but to ourselves and our dis-
without helping to shape those practices cipline for this mandate’ (Goffman, 1983: 5).
(cf. Haplin, 2001: 12). Others see jurispru- It does not mean that sociologists do not have
dence as a practical inquiry, which is civic commitments or that sociology is free
interpretive, normative and ultimately action- from all forms of pragmatism and instrumen-
guiding (Coyle and Pavlakos, 2005: 6). In talism. Neither is it implied that all sociologi-
this latter sense, there is a dialectical rela- cal studies are driven by the desire to
tionship between theory and practice which enlighten. Sociology has become increasingly
brings together conceptual, normative and pragmatic in recent years and a growing
empirical descriptions and understandings of number of sociologists tend to see their role
law. However, there is little doubt that as providers of scientific knowledge to the
jurisprudence observes and learns from legal decision-makers (Halliday and Janowitz,
practice while influencing it indirectly. In 1992). Still what bestows on sociology a
that sense, the boundary between ‘what is of unique understanding of social phenomena
the law’ and ‘what is about the law’ becomes and transforms it into ‘a form of life’ will
blurred. Various assumptions about the remain the curiosity about social life and the
nature of law which are elaborated by urge to reveal the hidden social structures.
jurisprudence can, for example, exert a nor- This means that a sociologist is often not
mative force over legal education and doctri- satisfied with the self-descriptions of law,
nal studies. Also, legal philosophical behind which he or she searches for layers
discussions can engage more directly with of meaning, social functions and power
legal issues by clarifying certain legal structures.
concepts, ideas or relationships – for an In contrast to the lawyer, who thinks
example see Hoefeld’s typology of rights pragmatically – sees law as an instrument to do
(Hoefeld, 1923). things with – and tends to reason in terms of