AN INTRODUCTION TO LAW AND SOCIAL THEORY by Reza Banakar and Max Travers (Editors). Oxford-Portland, Oregon: Hart Publishing, 2002. 367 pp. Cloth $65 ISBN 1-84113-208-X. Paper $35  ISBN 1-84113-209-8.

 

Reviewed by Yu Xingzhong , Department of Government and Public Administration, The Chinese University of Hong Kong. Email: xzyu@cuhk.edu.hk

 

To write on law and society is to respond to two crises: crisis in law and crisis in social theoryųboth are consequences of the reaction against enlightenment rationality. Contemporary jurisprudence has been marked by a series of movements to deconstruct or salvage law and legal theories. Ever since law and legal theory were subject to question and critique by the legal realists at the beginning of the twentieth century, legal institutions, legal consciousness and the study of law have been in crisis, a crisis deepening with the growing prosperity of „post-š and „law andš schools of thought. The crisis in social theory is even more apparent.  Since the 1960s, a variety of new theoretical paradigms have emerged, challenging the mainstream quantitative, empiricist, and positivist conceptions of social theory and social research. The new paradigms, such as phenomenology, ethno-methodology, structuralism, and hermeneutics have provided new ways to examine and analyze social practice and social issues, but none of them has successfully replaced the prevailing positivist social theories and social research. The consequence is that twenty-first century studies of law and society, with whatever orientation or perspective/approach, must be mindful of a number of distinctive but intertwined challenges: the critical, hermeneutical, postmodern, global and plural. AN INTRODUCTION TO LAW AND SOCIAL THEORY by Banakar and Travers has admirably taken up those challenges.

           

This long-awaited introduction to law and sociological theories has outlined six major sociological views and perspectives that have been developed to study law and society: classical sociology of law, systems theory, critical approaches, interpretive approaches, postmodernism, and pluralism and globalization. Each section begins with a brief but carefully worked-out introduction by the editors. As noted by the authors, law and society remain frustratingly apart after almost half a century‚s effort to marry them, and they hoped that this work could serve as a median to tighten that relationship or start a new chapter of romance between the two. The authors particularly wanted to make a distinction between sociology as a scientific discipline concerned with studying society and social policy debates about public sector institutions and services. With this book they wanted to demonstrate how different sociological traditions could be used to study law. The essays in the collection were committed with specific requirements to the writers that the articles be written in a way that can be easily understandable by general readers. The finished book, as it is now, fulfills the wishes of the authors.

 

The book is not a detailed exposition of any particular social theory or even any discussion on a substantive issue of social theory. Rather it is a collection of papers loosely connected by a broad understanding of society and law, providing a general survey of available approaches to law and societyųand, it is easy to understand. It can be used as a textbook, a primer on the study of law and society. It can also be read as an introduction to general jurisprudence in the twenty-first century. It may also serve as an impetus to propel a new wave of law and society or sociology of law research.

 

As this is a collection of essays written by 18 scholars with different research interest, it is necessarily selective, and some sections tend to be more selective than others. For instance, the section on interpretive approaches, which has two articles discussing symbolic interactionism and ethno-methodology respectively, and the section on postmodernism, which has two articles discussing Foucault‚s ideas about law and the relationship between postmodernism and the common law, have presented rather thin pictures of the subject matters being considered, despite the existence of extensive and diverse discussions on both perspectives by other scholars elsewhere. By contrast, the section on critical approaches, which includes articles on Marxist social theory and law, critical legal studies, feminist legal theory and queer legal theory, provides a fairly complete picture. 

 

Alan Hunt, as always, writes in critical tone, but in the end his arguments suggest a constructive jurisprudence. His reversal of historical influence of Hayek‚s view on impossibility of planning is far more interesting than his account of classical views of sociological theory of law. But readers who have been following his writings will agree that he always has something interesting and new to say about anything.  Robert Fine‚s discussion urges us not to assess Marxist legal theory from the perspectives of a „pulviscular cloud of critical discussions.š The key to understanding Marxist critique of jurisprudence is to resist all forms of historicism and to dispel all teleologies of progress. To Fine, the contribution of Marxism to our understanding of law lies in its determination to uncover the social relations expressed, mediated and obscured in such legal categories as private property, state property, constitutional governance, representative government, and the like. Marxist social theory investigates why and with what consequences social relations assume determinate legal forms. His discussions of different Marxist approaches to law and society reminds us of the writings by Eugene Kamenka and Alice Tay, but adds more to the existing scholarship. Writing in the twenty-first century, he is well aware of the marginalized position of Marxism in the world intellectual landscape, but emphasizes that there is life in the theory, yet.

 

The Chapter on sociological jurisprudence reconsiders the significant contribution the Polish-Russian jurist Leon Petrazycki (1867-1935) made to the study of law and society in comparison with the Austrian jurist Eugen Ehrlish (1862-1922). For the authors, Petrazycki and Ehrlish are representive of those who employed social sciences in order to improve the science of law. They can be distinguished from those engaged in the analysis of law that emerged from the sociological inquiry into the nature of modernity.

 

The section on systems theory stands out as an effort to defend the idea of the autonomy of law which has been one of the most contentious points among scholars in the field. With the emergence of new paradigms for understanding law and legal studies, sustaining the autonomy of law notion has become increasingly difficult.  The section focuses on the contributions of Niklas Luhmann and Jürgen Habermas.  Luhmann‚s theory of autopoietic social systems, or operatively closed systems, composes a good defense of relative autonomy of law.  The related chapter provides excellent guidance for understanding Luhmann‚s rather difficult theory and its application to law.  It is somewhat hard, though, to convince the reader that Habermas can also be seen as a systems theorist, even though he has addressed „systemš and „lifeworldš in his works. Therefore the chapter on Habermas essentially discusses his ideas on emancipation, legitimacy crisis, public sphere and the relationship between system and lifeworld. In connection with the idea of relative autonomy of law, one author that might have been included in the book is Karl Popper whose theory of World 3 would serve as a useful starting point.

 

The editors acknowledged the omission of certain major authors in social theory. The omission of Donald Black is significant, as Black‚s theory of looking at law from the perspective of behavioral science figures prominently in contemporary studies of law and society.  Founding fathers of sociological jurisprudence, especially Roscoe Pound, should also be mentioned. The omission of Talcott Parsons, however, is fatal. Social theory has experienced two dynasties ever since its inception: 1) the classical period of social theory ushered in by the trinity, or more precisely five classical thinkers, August Comte, Georg Simmel, Karl Marx, Max Weber and Emile Durkheim and 2) Parsonian structural functionalism. In addition Parsons‚ theory of society embraces the liberal legal order and its justifications from the perspective of sociology that posts a sharp contrast with other sociological views of law which are more critical of the liberal legal order. Parsons‚ theory of society and law, therefore, well qualifies for detailed discussion in any work of this genre.  In addition, Pierre Bourdieu also deserves more careful treatment than has been accorded to him in the current book.

 

In the concluding part of the book the editors argue that sociology of law may better be understood as a sub-field of sociology, an argument likely to be met with disagreement among lawyers and jurists. Whether sociology of law, the study of law and society, or law and social theory as a discipline belongs to sociology or jurisprudence may prove to be relatively unimportant, but the service this volume has provided for such a field is enormously great. The reviewer, of course, can hardly do justice by this brief review to a volume of more than 300 pages, written by serious scholars in their respective fields.  Students of law and society and interested readers should not be misled by this review.  In order to have a better sense they should read the book.

 

REFERENCES

 

Black, Donald. 1972. „The Boundaries of Legal Sociology,š 81 THE YALE LAW JOURNAL 1086-100.

 

____________. 1976. THE BEHAVIOR OF LAW. New York: Academic Press.

 

____________. 1989. SOCIOLOGICAL JUSTICE. New York: Oxford University Press.

 

Bourdieu, Pierre. 1977.  OUTLINE OF A THEORY OF PRACTICE. Translated by Richard Nice. Cambridge; New York: Cambridge University Press.

 

Bourdieu, Pierre and Loic J.D. Wacquant. 1992.  AN INVITATION TO REFLEXIVE SOCIOLOGY. Cambridge: Polity Press.

 

Durkheim, Emile. 1984. THE DIVISION OF LABOR IN SOCIETY. Translated by W.D. Halls. New York: Free Press.

 

Easton, Loyd D. and Kurt H. Guddat (ed. and trans.). 1967. WRITINGS OF THE YOUNG MARX ON PHILOSOPHY AND SOCIETY. New York: Anchor Books.

 

Kamenka, Eugene (with Alice Erh-Soon Tay). 1985. „Marxism, Socialism and the Theory of Law,š 23 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 217-49, 1985.

 

Martineau, Harriet (trans.).  2001. THE POSITIVE PHILOSOPHY OF AUGUST COMTE. Bristol, England: Thoemmes.

 

Marx, Karl. 1973. GRUNDRISSE. Translated by Martin Nicolaus. New York: Vintage Books.

 

Parsons, Talcott. 1978. ACTION THEORY AND THE HUMAN CONDITION. New York: Free Press.

_____________. 1968. THE STRUCTURE OF SOCIAL ACTION: A STUDY IN SOCIAL THEORY WITH SPECIAL REFERENCE TO A GROUP OF RECENT EUROPEAN WRITERS. New York: Free Press.

Popper, Karl. 1945. THE OPEN SOCIETY AND ITS ENEMIES. (2 Vols). London: Routledge.

 __________. 1963. CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE. London: Routledge.

__________. 1972. OBJECTIVE KNOWLEDGE: AN EVOLUTIONARY APPROACH. Oxford: Clarendon Press.

Pound, Roscoe. 1997. SOCIAL CONTROL THROUGH LAW. New Brunswick, NJ and London: Transaction Publishers.

 

Rheinstein, Max (ed.). 1954. MAX WEBER ON LAW IN ECONOMY AND SOCIETY. Translated by E. Shils and M. Rheinstein. Cambridge: Harvard University Press.

 

Simmel. Georg. 1971. ON INDIVIDUALITY AND SOCIAL FORMS: SELECTED WRITINGS. Edited by Donald N. Levine. Chicago: University of Chicago Press.

 

Tay, Alice (with Eugene Kamenka). 1985. „Marxism, Socialism and the Theory of Law,š 23 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 217-49.

 

Thompson, Kenneth (ed.). 1976. AUGUST COMTE: THE FOUNDATION OF SOCIOLOGY. London: Nelson.

 

Weber, Max.  1958. THE PROTESTANT ETHICS AND THE SPIRIT OF CAPITALISM. Translated by Talcott Parsons. New York: Charles Scribner‚s Sons.

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Copyright 2003 by the author, Yu Xingzhong.