Page 97 - The ISA Handbook in Contemporary Sociology

9781412934633-Chap-05 1/10/09 10:21 AM Page 68

68 THE ISA HANDBOOK IN CONTEMPORARY SOCIOLOGY

Ehrlich and Pound (and a generation later would begin his or her study by anlyzing the
Georges Gurvitch) employed social sciences anti-discrimination laws. He or she would
to transform legal education and practice and recognize and take into consideration the
to devise a scientific concept of law. At the internal point of view of lawyers by studying
centre of this transformative legal project, we legal cases and court decisions to settle dis-
find theories and concepts of law which are putes which are based on gender or ethnic
empirically tuned and broader in scope than discrimination. However, he or she would not
what most jurists recognize as the law proper. limit the sphere of inquiry to positive law and
Pound criticized and challenged the legal its application by the courts but would also
formalism (which used strict conceptual pay attention to how these disputes are set-
logic) that dominated the American legal tled by extra-legal means, sometimes outside
thought of his day for being mechanical, the courts and in the shadow of law. If the
artificial and out of touch with the needs of sociology of law tends to view law from the
society. He argued instead for a jurispru- outside by emphasizing how it interacts with
dence which placed the human factor and other social factors and institutions, socio-
condition, rather than logic, at the heart of logical jurisprudence tries to view how the
its analysis. He borrowed insights from the law is seen from both inside, i.e., how it is
philosophy of pragmatism and the new disci- experienced by legal practitioners and others
pline of sociology to develop a new approach who participate in law’s processes and from
to law, legal research and legal education. the outside. The dialectical interaction between
This led Pound to argue that it was ‘law in the internally and externally produced con-
action’ and not ‘law in the books’ which con- cepts, ideas and images of law lies at the
stituted the basis of law and legal institutions. heart of many studies which fall within this
He criticized the individualist theories and tradition (Banakar, 2003). 6
standards of ‘legal justice’ to which lawyers To sum up, the sociology of law, Law and
adhered, and instead urged both legal schol- Society and sociological jurisprudence began
ars and practitioners to work towards a con- somewhat differently, in different times and
cept of ‘social justice’ which was informed places and with different aims in mind. Yet,
by the standards of sociologists. there is more which unites than separates
The European scholars went further than them. As a result, many of the individual stud-
Pound by directly challenging the underlying ies couched within these three orientations are
ideology of legal positivism. They urged hardly distinguishable from each other. These
jurists to recognize the vital role played by three orientations demonstrate the diversity of
the informal and unofficial mechanisms of aims, theory and methods within the sociolog-
social control in creating legal institutions ically inspired studies of law.
and moulding legal behaviour. In this way
they confronted the jurisprudence of their
time by presenting the social forms of law, Socio-Legal Studies and legal policy
rather than the rules posited by the State, as research
the basis of legal order. For them the State
could not be the primary source of law for ‘Socio-Legal Studies’ in the UK has grown
the simple reason that its existence presup- mainly out of the interest of law schools in
posed a form of law. Petrazycki and Ehrlich promoting interdisciplinary studies of law.
argued, each in his own way, for an empiri- Whether regarded as an emerging discipline,
cally based concept of law which was broader sub-discipline or a methodological approach,
than the State law and existed independently it is often viewed in light of its relation-
of any outside authority. ship to, and oppositional role within, law
Using our example of unlawful discrimina- (Thomas, 1997: 3). It should not, therefore,
tion, a sociologist working within this tradition be confused with the legal sociology of many