Vol. 3, No. 11 (November, 1993) pp. 117-119
Alan Hunt, EXPLORATIONS IN LAW AND SOCIETY: TOWARD A CONSTITUTIVE
THEORY OF LAW. New York: Routledge, 1993.
Reviewed by Mark Cooney, University of Georgia
Alan Hunt's new book is a collection of eleven papers published
between 1976 and 1992 bounded by new introductory and concluding
chapters. Arranged in chronological order, the essays address
four broad issues. The first is the puzzle of the staying power
of capitalism given its decreasing reliance on coercive
mechanisms of social cohesion. Four chapters pursue this theme
drawing on the concepts of hegemony and ideology. The second
topic, addressed in two chapters, is the politics of law. Here
Hunt explores the compatibility of rights-based discourse with
leftist, especially Marxist, theory. He advocates the involvement
of Marxists in the politics of law (e.g., debates about crime
control), and argues, citing Gramsci, that the pursuit of rights
has transformative possibilities when it forms part of a larger
set of counterhegemonic strategies. A third issue, to which two
chapters are devoted, is the theoretical underpinnings of the
Critical Legal Studies movement. Hunt is a friendly critic of the
movement, welcoming the advent of a leftist critique of law but
urging a greater concern with theory. The fourth theme -- evident
in his more recent papers -- is a new perspective which he calls
constitutive theory. This urges a relational view in which the
component elements of social life are not individuals or
institutions but combinations of economic, political, class,
gender, and legal relations. Hunt argues that a major task of law
and society scholarship is investigating the extent to which law
constitutes social relations. This theme is explored in four
chapters which deal, respectively, with G.A. Cohen's argument
that the economic base of society is independent of its rules of
property law, Marxism and law, Foucault's "expulsion of
law", and, finally, "law as a constitutive mode of
regulation".
A conspicuous quality of this book is its intellectual
seriousness. The problems discussed are large and fundamental.
Moreover, Hunt's treatment of them exhibits a commendable
willingness to rethink, even reject, his earlier position as he
gropes toward a more complete understanding of the issues. There
is a sense of struggle in these pages, of a writer continually
fascinated by the big questions of socio-legal theory.
These essays also exhibit a broad-ranging erudition spanning a
number of specialties. Hunt makes skillful use of the literature
in European social theory, jurisprudence, philosophy, and the
sociology of law. Moreover, unlike some of the thinkers he cites,
he writes clearly and accessibly (though not always elegantly). A
number of his essays might be faulted for being overly long --
tighter editorial work would have helped the book -- but they
cannot be criticized on grounds of obscurity.
Third, despite the range of topics they cover and the length of
time over which they were published, the essays cohere well. What
draws them together is a common concern with theoretical
questions. Hunt is an adept critic of theory. I found his chapter
on "The Theory of Critical Legal Studies" particularly
persuasive. He argues, for example, that the movement's concern
with the internal characteristics of legal doctrine has led it to
neglect the important issue of the external sources of law; that
its critique of legal liberalism would be stronger if it directly
confronted the writings of key figures, such as Hart and Dworkin;
and that its concentration on the incoherence of legal rules may
be misplaced because logical inconsistencies, far from weakening
legal liberalism, may actually promote its flexible accommodation
of diverse values and interests.
If the theoretical focus of the book represents one of its major
strengths it is also, however, the source of its weaknesses. To
these I now turn.
For all the learning and commitment it embodies, there is a
curious vagueness at the heart of this book. One fountain of
this, I believe, is Hunt's conception of theory, a conception not
unique to him but one which, on the contrary, is fairly widely
held.
Though Hunt self-consciously draws on elements of jurisprudence,
sociology of law, and philosophy the theory he discusses and
seeks to advance is ultimately empirical. That is, Hunt is
interested in making claims about the social world. For instance,
in his introductory chapter he says that the concept of ideology
is designed to address the following question: "How is it
that capitalist social relations that relegate the great majority
of people, whether in the metropolitan heartland or in the
innumerable peripheries of the third world, to a life of
systematic inequality and disadvantage are sustained though
social mechanisms that have come to place decreasing reliance on
direct mechanisms of coercion?" (p. 7). Clearly, this is a
factual question -- it seeks to understand how inequality
survives with little use of coercion. Yet, remarkably, Hunt never
addresses any systematic body of empirical data in answering it.
He devotes many pages to discussing the issue but cites no hard
evidence that (1) coercion has declined, or (2) that other
mechanisms are more important than coercion in sustaining
capitalism. Moreover, both assumptions are challengeable, the
first by, for example, the rising rate of imprisonment and
capital punishment in the United States, and the second by the
considerable role the criminal law plays in the lives of those
most disadvantaged by capitalism. Hunt may be right, but that
should not be taken for granted. As empirical researchers well
know, reality has a nasty habit of turning out differently than
we expected. The only way of finding out if Hunt's claims are
accurate is to embark on a different kind of intellectual inquiry
than the one in which he is engaged.
Hunt acknowledges the value of empirical work at a few points in
his book (e.g., pp. 223-224). Moreover, it is perfectly
acceptable for him not to do empirical research of his own: that
is why we have a division of intellectual labor. My point though,
is that the kind of theory he seeks to advance requires a vastly
more intense involvement with the results of empirical
investigation than this book evinces. Hunt's concept of theory is
suspended between traditional philosophy and modern social
science. The strain shows: To assert what the world is like while
ignoring what we have learned about it is not an optimal
intellectual strategy.
There are also problems with the substance of Hunt's theoretical
perspective. Here I turn from his general style of theorizing to
the specific content of his work. Hunt writes from within a
Marxist frame of reference. Now the Marxist theory of law walks a
tightrope. What distinguishes Marxism from other viewpoints is
the view that law is an instrument of the ruling class. It is
clear, however, that law does not always operate this way -- the
welfare state provides a series of rights which benefit the
disadvantaged; labor unions, squatters, and the poor sometimes
overcome their higher status adversaries in court; the class
issues are often very difficult to determine in legal cases etc.
To account for these facts, other factors must be invoked. But to
introduce additional considerations is to risk contaminating the
model and forfeiting the distinctiveness of the theory.
Sophisticated Marxists, like Hunt, therefore struggle, as he says
quoting Althusser, to hold onto "both ends of the
chain" (p. 120), that is, to find a position between the
extremes that law is, an instrument of the ruling class, on the
one hand, and that law is independent of the ruling class, on the
other.
This is the dilemma that Hunt wrestles with in the early chapters
and the one the concept of ideology is intended to overcome. The
ideology thesis holds that law embodies a set of ideas and values
which help to stabilize capitalism by naturalizing and
legitimizing the social order. In his early work, Hunt
distinguishes between the coercive domination implied by the
class instrumentalism thesis and the ideological domination
suggested by the work of Gramsci. Though he later backs away from
this particular formulation (p. 79), he never repudiates the
concept of ideology itself.
The problem with the concept of ideology is that it does not
SPECIFY what other factors are relevant to understanding law.
Here empirically-grounded sociology of law provides a welcome
contrast. Through research on pre-industrial, historical, and
modern settings, legal sociologists have been able to identify a
whole range of factors beside economic or class variables that
are relevant to the way cases are handled -- such as the
relational distance, moral reputation, organizational
affiliations, cultural conventionality of the parties. [See Note
1] Despite the very different theoretical origins of these
variables, and despite the fact that they often appear to be more
influential than class or economic factors, Marxism lumps them
all together under the hazy label of "ideology". At
least at the case level, non-Marxist legal sociologists can be a
lot more specific about the social influences on law.
Vagueness also haunts the perspective Hunt embraces toward the
end of the book -- constitutive theory. This appears to have two
major components. The first is a view of social life as being
comprised of overlapping relations -- economic, class, political,
legal, and gender. For example, instead of rigidly separating out
the economy and law (base and superstructure), Hunt argues that
it is more accurate to enquire how economic and legal relations
interact in any given setting. One form of interaction of
particular interest to legal scholars is the constitution of
social relations by law. Wary of the fallacy of "legal
imperialism" which sees law as the most important
coordinating mechanism in modern society (p. 293), Hunt does not
claim that law constitutes all social relations. Nevertheless, he
believes that a constitutive perspective "can contribute to
the revitalization of the project of the "law and
society" movement" by posing the question: "What
part, if any, does law play in social life?" (p. 328).
Apart from the fact that this question surely implies a massive
empirical effort -- strangely ignored by Hunt -- it is difficult
to see what is theoretical about constitutive theory as it now
stands. It does not explain anything; it does not even provide a
conceptual framework. It is a hypothesis. To be fair, Hunt seems
aware of this -- note the tentative subtitle of the book.
However, I have grave doubts as to whether constitutive theory is
ever likely to be anything more than an inexplicit general focus.
After all, what Hunt is proposing is that scholars seek to chart
the influence of law on every aspect of social life and then
formulate it into a coherent theory. Since law affects an
enormous number of arenas but is typically only one of many
influences operating, Hunt's vision amounts, in effect, to a call
for a sociological Theory of Everything. Perhaps some day this
will be developed, but only after a long period of detailed,
specialized studies of narrower segments of social reality. A
vastly more promising approach lies in treating law as a
dependent, rather than an independent, variable by asking the
reverse question: what part does social life play in law?
Although much remains to be discovered, this is the issue on
which most progress has been made since the founding of the law
and society movement. For reasons that are not entirely clear,
many law and society scholars moved away from it to the very
question Hunt poses. I agree with Hunt law and society
scholarship requires revitalization, but I disagree that the
question he formulates or the kind of theory he advocates can
bring this about.
Notes
1. See especially Donald Black, THE BEHAVIOR OF LAW (1976). Hunt
wrote an intemperate critique of Black's work ("Behavioral
Sociology of Law: A Critique of Donald Black JOURNAL OF LAW AND
SOCIETY 10: 19-46 (1983)) which suggested, to the present author
who replied to him ("Behavioural Sociology of Law: a
Defence" MODERN LAW REVIEW 49: 262-271 (1986)), some
insecurity on his part about the empirical validity of Marxism.
Copyright 1993