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