LAW IN THE SOCIOLOGICAL ENTERPRISE: A RECONSTRUCTION
by Lisa J McIntyre. Boulder: Westview Press, 1994. 240 pp.

Reviewed by Robert Dingwall, School of Social Studies, University of Nottingham, United Kingdom.
 

Although the sociology of law has become a significant element in what is variously called the Law and Society field (in the US) and the Socio-Legal field (in the UK), it remains a rather marginal activity within the discipline of sociology. In one sense this is odd, since the great figures of our tradition -- Marx, Weber, Durkheim -- all thought that law was a central topic for sociological analysis. In another, it reflects the very openness of the interdisciplinary field, where scholars draw freely on the various contributing social sciences in ways that create problems for conventional disciplinary agendas. The sociology of law needs to take account not only of the writings of legal researchers and theorists but also those coming from political science, from anthropology, from economics and psychology in a way that is rather more than simple eclecticism. As far as the UK is concerned, where there are strong institutional pressures from the funding system to emphasise the separateness of disciplines, this is a very considerable disincentive to specialize in this area of work.

The study of criminal justice is a partial exception, where active state support and the sheer scale of public spending generate research funds and student demand that create a counter-pressure. For other aspects of law, however, there are few comparable sources of resistance. The costs of civil or family justice are perceived as mainly private and there have been no means of aggregating these individual interests in order to create funding sources for research or markets for specialized education. One of the challenges to social science remains the demonstration of the public costs of these areas and the need for public investment to manage them in an efficient and effective manner.

The underdevelopment of the sociology of law creates a vicious circle for those of us of who would like to introduce students to it. In the absence of a mass market, textbook publishers are reluctant to commission texts: in the absence of suitable texts, teachers have to work harder to collect materials that are acceptable to students. In the UK, the main text available is Roger Cotterell's THE SOCIOLOGY OF LAW, (Butterworth, London, 1992). This is an excellent book for graduate courses but its concentration on sociological theorists of law tends to make it rather challenging for undergraduates. It also has a rather thin treatment of interactionist and ethnomethodological contributions and its discussions of empirical work are sometimes insufficiently critical on methodological points. These are not fatal weaknesses at graduate level but do confuse undergraduates. I have also occasionally made use of an Australian text, Bottomley, Gunningham and Parker's LAW IN CONTEXT, (Federation Press, Leichardt, NSW, 1991). This captures the interdisciplinary aspects of the area quite well but works better with law students. It does not really have a sufficient focus on sociology to be a main text in an elective taken by a sociology major.

Lisa McIntyre's book is, then, a welcome contribution to what seems to be a thin field. I read it with considerable enthusiasm and much profit, although I think I am unlikely to make much use of it in my own courses because it is so heavily American in its orientation. Outside the US, I suspect that it is likely to be more valuable as secondary reading, although I would strongly recommend any institution with courses in this area to have several copies in the library for student consultation.

From my point of view, the particular virtue is in the first section, which is mainly theoretical in its orientation. One of the problems that I commonly encounter with students is their preconception that law is simply a means of social control. While this is certainly an important aspect, McIntyre shows very clearly how law is also creative and constitutive. The book opens with a discussion of contract. This was a central issue for the classic writers and McIntyre's astute use of examples brings out its importance in societies that we consider modern. Contract is a way to organize people, relationships and expectations. Her subsequent chapters look at each of these in turn: who is considered to be a person and capable of entering into a contract and what are the consequences of being a non-person? What relationships are considered to be capable of being governed by contract and what are the consequences of being excluded? Which social expectations are enforceable by contract and which are not? This last explores the problematic relationship between social and legal norms and the extent to which law can lead or simply follow social and economic change.

A particular strength of McIntyre's treatment is her movement between abstract theoretical points, which are nevertheless generally made in a simple language, and the kind of exemplification that undergraduate students should identify with and relate to. The second part of the book uses the approach that she has outlined to show how the sociology of law can illuminate the understanding of two important areas of US society: the family and the workplace.

I only have two gripes about the theoretical section. The first is that I was surprised to see so little attention to anthropological writing. I think that some of the most helpful ideas about the regulative and constitutive aspects of law have come out of the work of social anthropologists: if Simon Roberts's ORDER AND DISPUTE (Harmondsworth, Penguin, 1979) were still in print, for example, I would think it an essential supplement. The other is that McIntyre does tend to give rather short shrift to liberal theorizing about most of the issues that she deals with. Maybe it is a legacy of 18 years of Conservative governments, but I find it necessary to approach students a little more indirectly and to reflect the liberal case before discussing it.

I am not wholly competent to review all of the empirical examples, cases, etc. Although I follow the US literature reasonably closely, some of the content requires a local knowledge that I do not have. However, two points do concern me. On p.89, McIntyre produces a list of common law countries, which include "Scotland, South Africa, and Rhodesia." Scotland and South Africa have similar legal systems but they would normally be described as Roman-Dutch. Although influenced to some extent by the English tradition of common law, there are also important Civil Code elements, especially in South Africa. Rhodesia is certainly more influenced by common law but it is odd in a book which is generally fairly PC to find this country described by a colonial name which it has not used since the overthrow of the Smith regime and the legal grant of independence, which was well over 20 years ago - in fact it was so long ago that I cannot remember off-hand! It would also be worth noting on this page that Wales has been a part of the United Kingdom for so long that it does not have a separate legal system as the text implies, unlike Scotland and Northern Ireland, whose system is, of course, distinct from that of the Republic.

I also had some hesitations about her treatment of CHAPMAN V PHOENIX NATIONAL BANK on pp. 51 and 91. The decision, that a married woman lost the right to lose her own name, may have been taken as an important precedent and has obviously attracted significant comment from feminist writers for its symbolic importance. However, the footnote material on p. 91 shows clearly that it is more plausibly interpreted as a low-level judge inventing a legal principle to achieve a substantively just result.

As many sociological writers on low-level courts have observed, judges frequently face a tension between formal and substantive justice that is resolved by variously creative interpretations of statute and precedent. One of my favorite pieces of interview data has always been the clerk I interviewed in a magistrates' court who observed that you could always tell that a lawyer was getting desperate because this was when he turned to points of law! I did wonder if this case really bore the weight put on it in the discussion of personhood or whether it might have been better used to explore the formal/substantive issue or even to point up the way in which an ad hoc solution to a particular case might get taken up as a precedent in unintended ways.

Those of us who are seeking to establish the sociology of law as a recognized domain of research and teaching within sociology will be grateful to Lisa McIntyre for writing a text of commendable clarity and user-friendliness. If I were teaching in the US, I should certainly try it with undergraduate majors. However, I think that rather more concessions might need to be made to those of us who work offshore if the book is to be useable for our students. I am not sure that such an approach would be commercially justifiable or intellectually coherent but McIntyre's book is a model that should provoke other potential textbook writers to serious reflection.