Page 95 - The ISA Handbook in Contemporary Sociology

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66 THE ISA HANDBOOK IN CONTEMPORARY SOCIOLOGY

of Durkheim and Weber, who used the study Such studies ignore concepts and ideas
of law as a means to investigate the underly- which are internal to law and legal reasoning
ing social mechanisms of modernity. Law and through which law constructs its images
provides the sociologists with a standpoint of society and impacts on social relations.
from which they may view and study a range Looking at the sociologist’s neglect of legal
of theoretical and substantive issues such as ideas in a positive light, we could argue that
social differentiation, social integration, it frees him or her from the internal culture of
forms of authority, the role of rationality or the legal system and assumptions about the
the process of inclusion, exclusion and crim- sources of law and the nature of legal reason-
inalization of groups, equality of wealth and ing. It enables the sociologists to identify the
resources, or the significance of gender or sources of law in social formations and asso-
race in social organization. As Roger ciations which have come about and exist
Cotterrell explains, Durkheim seemed ‘to independently of the State. It also makes it
approach legal materials mainly for their possible to ask questions which fall outside
capacity to provide, in the documentary the paradigm of legal studies regarding, for
form of ancient and modern codes, “visible example, the objectivity of legal reasoning.
symbols” of social solidarity, an “index” or That is partly why many sociologists and
measure of this elusive phenomenon’ social anthropologists adopt a bottom-up
(Cotterrell, 2005: 504). Durkheim’s analysis perspective on law, regarding social interac-
of law is, thus, ‘a methodological device for tions and relations as the primary focus of
examining something that is, apparently, of their study while treating the law as a ‘resid-
greater sociological significance than law ual category’ (Sarat, 2000: 195). This can
itself’ (Cotterrell, 2005: 504). To give a con- lead them to emphasize the interests and
crete example, if a sociologist of law decides experiences of ordinary men and women in
to study unlawful gender or ethnic discrimi- general, and marginalized groups, in particu-
nation, it is most probably not because he or lar. Jurisprudence, legal studies and policy
she wishes to explore how courts use doc- research, on the other hand, adopt a top-
trine in the process of legal reasoning to down view of the law, viewing the law from
decide discrimination cases. It is, instead, above, treating the State as the source of law
more likely that he or she seeks to understand and addressing the concerns of policy-
how the interpretation and application of makers. As a result, much of socio-legal
anti-discrimination laws help to constitute research appears to foster a ‘critical’, rather
race and gender-related social inequalities in than ‘neutral’, understanding of the ideology
society (Banakar, 2004). Expressed differ- of law, highlighting issues related to social
ently, how law views and treats unlawful justice, ‘marginalized groups, peripheral
discrimination provides the sociologist with institutions, deviant behavior’ (Abel, 1987:
a vantage point from which to study how 827) and generally depicting law in a nega-
social inequalities in society are constructed tive light.
and how society copes with conflicts of However, freedom from the constraints of
values, interests and worldviews using law’s internal culture can mislead the sociol-
formal methods of dispute resolution. ogist into assuming that the legal system’s
Most sociological studies of law focus on modus operandi is of no importance to the
the external manifestations of law. They studies conducted from a vantage point
focus, for example, on the rate of litigation in external to the legal system. As a result, the
a specific jurisdiction, asking why one group sociologist can be misled into treating one
is more likely to litigate than another; or manifestation of the legal system, such as the
examine the attitude of ordinary citizens rate of litigation in one jurisdiction or the
to new legislation, asking how the introduc- attitude of certain groups to a particular law,
tion of a new law has influenced behaviour. as representing the totality of law in action.