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4The dea ofSociology ofLaw and itsRelation toLaw and toSociology

John Griffiths

Prologuenthe beginning there should always be a problem. Mine concerns what mi ght be

called One Hundred Years of Confusion'. Confusion about what sociology oflaw is, and in particular abour its relationship to law and ro sociology. I am notgoing to address the confusion itself and provide a SOrt of intellectual history,ciring all of he chapte rs and verses where ir can be observed. Everyone with anyacquaintance with sociology oflawwill recognize at once what I have in m ind andI doubr that spending the limited space available here belabouring the obviouswould prove very entertaining. What I shall address is not the confusion but itssolution.

I shall formulate the solution at which I have arrived over the past couple ofdecades in three related, non-obvious, and I hope in their inter-relationship radical, proposirions. The first is that social control is constitutive of every kind ofsocialgroup and isrherefore rhe foundational conceptof sociology.The second isrhar social control-not law -is rhe proper subject of sociology oflaw. And therhird is rhar rhe sociology of law is not just one of the many sub-disciplines ofsociology bur that part of sociology thar concerns itself with the el ementary socialcement' pr esupposed by all social life.! I shall end with a short homily on theimportance of sociology oflaw to a legalscholarship that aspires to more than theexegesis oflegal texts.

There is obviously nothing modest about such an undertaking. Coming from asociologis t of law, the endeavour might be considered imper ialist or even megalomaniac. 'Sociology', 'social control' and the concept of 'law' are subjects on whichmany books could be, and have been, written. One who proposes to polish them alloff atoncein a fewpagescannotbe denied a certain temerity even ifhe pretends tooffer no more than the sketch of an argument.

CompareJ Elster The m n i t JfSociety. Study Social Ordn- (Cambridge, 1989).

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50 John Griffiths

What is Sociologyof Law?Let us begin with the seemingly simple question: What is sociology of law?'Anyone who like me earns his living doing it is regularly confronted wit h this sonof naive curiosity. The 'sociologist of law' apparently enjoys a less well-definedsocial image than the farmer or the lawyer. But however simple the questionsounds, giving a reasonably satisfactory answer is not simple at all and turns out tohave interesting ramifications,

Obviously,there ismore than one possibleideaof'sociologyoflaw' and thereforemore than one answer to the question what it is. None of them is the 'right' one,though some may be more right than others. Insofar as they are mutually exclusive,only the results of competition will ultimately permit a choice between them: theproofofthe intellectualpuddingis in theeating.2 I takethe position that sociologyoflaw is an empirical social science about an observable socialphenomenon commonlycalkd law and that the ultimate objective of he enterprise is the formulation andtesting o explanatory theory.3 I shall not address attention to other possibleapproaches, which can undoubtedly be berter presented by those who hold them. 4

In my view, the shortest and at the same time complete and correct answer tothe question what sociology of law is, is that it is the sociological study o law. Theonly problem with this is that whoever asked the question won't find such ananswer very enlightening. But the answer contains more than one might think,including one proposition that is not at allself-evident at all: sociology oflaw is apart of sociology,not a son or a part oflega scholarship.>Wewillsee shortlyhowimportantthisis forthe fundamental nature of sociologyoflaw.

2 As fur asI amconcerned.the 'eating' in thiscaseconsistsof the cumulationof usefulknowledge:of theoreticalpropositions thar areempiricallyresrableand haveproven to be robust. I am in thisregard an unrepentant adherent ofKarl Popper.3 I havewritten elsewhereonthe sociological poinrof viewin sociologyoflaw:J.Griffiths,'Wat isrechrssociologie?' [Whar issociologyof law?] in J.Griffiths(ed.), DeSociale Werking vanRecht (TheSocialWorkingof Law](Nijmegen, 1996). 1. Ihopeto return to that theme inthe nearfuture. In themeantime, I shall simply take that point of viewfor granted in this chapter.4 I should perhapsemphasize that whileI take a ratherrelaxed.eclecticapproach to the what andthe howof observation. I doregard asocialscienceaslimired roobservablephenomena, ultimatelytohuman behaviour.Tothe extent theoft-heardclaimthat 'becauselawisaboutvaluesandinterpretations', thesociologyoflaw musr thereforebeabout such things OO ismeant to gobeyond observablephenomena (including posirivemorality),I rejecttheclaim,atleastin thesensetharI myselfusetheexpression'sociologyof law' in a differentway. The pointof theenterprise,as Iseeit, isnot to'grasp'or to 'interpret' law,but to beable to explain it.This is of course not meanr to deny the fact thar to an important extent the intellecrualroots ofthesociologyoflaw liehistorically,and stilllie,in the interestthat socially engagedlawyershavein thesocialorigins andthe socialeffectsoflaw.The importance of theseroots reflects itselfin thefactthatsociologistsof lawhave generallydirected their attention to the soresof questions about lawthat

interest such lawyers,with as a consequence that sociologyof law often in practice seems little morethan a para-legalendeavour.A. Hunt TheSociological Movement inLaw (London, 1978 calls theinterest oflawyersin the socialeffectsoflaw the 'sociological movementin law' todistinguish itfromsociologyof lawin the senseof asocialscienceof law.Compare eM Campbell and P Wiles ('TheStudyofLawandSocietyin Britain'(1976) 10 LawandSociety Rnnnu547) for a similar distinction

TheIdea o Sociology o Lawand itsRelation to Lawandto SocThe expression 'sociological study of law' contains two concept

and 'law'. We will know what sociology of aw is when we have extwo concepts and the relationship between them.s

SociologySociology is the scientific study of human social life. It deals with evmakes a human social group more than an accidental collection oWithout some sort of social order, a group simply does not exist.social order determines the nature and composition of a group aninternal and external relationships. The behaviour of human beingaspect-and ishence the subject of sociology-insofar asi t i snot lviduals how to behave--insofar as their behaviour is the subjeccommonly called social control',"

There have been attempts to found sociology not in a group-levelsuch as social control but in the individual-level choices made by so-cactors'. All such attempts ultimately fail. Hobbes' e ffon to derive socindividual commitme nt to a social contract forced him to accept 'natural' obligation to keep one's promlses.s Coleman sought to shonorms can be derived from self-interested choices, but like Hobbassume as pan of his analysisthe very thing he sought to explain: thsocialnorrns.? The intellectual history of such repeated failures to degoods from private choices leads me to the conclusion that the atteone'sway out ofa pre-socialstate of nature and into sociallifeis a primthe Baron von Miinchhausen fallacy: trying to lift oneself out ofpulling on one's own hair. I assume---on the contrary-that, historichuman beings have always lived in social groups. and that for existence ofsocial order---o fsocial control-s-can be taken as given.10(applied to the specificsituation in Great Britain) between 'socio-legalstudies' and ' R. Corterrell, Law s Community (Oxford. 1995). 74-7.

6 Afew wordsabour the relationship betweensociologyofIaw and some adjacedisciplines.Asfur asthe anthropology oflawis concerned the situation is. n principleterms derivefromdifrerentintellectual historiesbutare ultimatelysimplytwo namesJUrthischapterI usetheleon sociologyoflawto refer to both. To the extent that other sociacriminology lawand economics,legalhistory. psychology of law.and administrativeempirical waywith thelegalaspectof socialbehaviour.they fall within thescope of socconceive it.Consideringthematterpurelyfromthescientificperspective. thereisbut onenceoflawand thereseernsto megoodreasonto callthisthesociology oflaw.In dailyliftificconsiderationsareoftencrowdedourbya hostof accidentaltraditionsand institutio

7 Beingsubjectto socialcontrol doesnot implythat behaviouris therebycomplLikelaw,socialcontrol isofren not veryeffectiveand usuallyleavesconsiderableroomchoice. T. Hobbes.Leviathan (Londo9 ee J.5. Coleman, TheFoundations ofSoci4l Theory (Cambridge. MA 1988). e10 This does nor mean that social order cannot be explained. just that it cannwithin sociology. It is presumably possibl e to give a socio-biological account of tsocial life among the evolutionary ancestors of human beings. In such an accouchoice' but reprodu ctive successwould play the key role.

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532 John GriffithsSocial Contr olSocial control is not an extra substance that, when added to a collection ofindividuals, creates social order and turns them into a group. Nor does theconcept carry any top-down implication that one person or group controls thebehaviour of others, althoughobviously such a state of affairsis possible, especiallyin large and highly differentiated groups. The concept of social control as usedhere refersto the fact that the behaviour of the members of a group in relation toone another is regulated The regulation resides largely and ultimately in themutualrelationships andinteractionsofthemembers Behaviour that is regulated inthis way can be called social behaviour Sociology is thus the study of he mutuallyregulated behaviourof human beings asmembers of groups, I

Socialcontrol understood in this way is constitutive of every human group andeverysocialactivity and therefore the foundational concept of sociology.Allothercharacteristics and activities of groups and all of the consequences that groupshave for human life are structured by and depend ent on social control. The various distinguishable aspects of group life that are subject to social control are thedomains of specialties within sociology such as the sociology of medicine, ofknowledge and of science, of religion, ofsport, of cooking, and soforth. Commonto and constitutive of allsuch aspects of group lifeis socialcontrol.

These considerations lead inelucrably to the conclusion that social control is themost fundamental object of study in sociology.The term law should, aswe willseeshortly, be taken for sociological purposes to refer in a broad sense to social COntrolIn short, sociology of law isnot just one of the many sub-disciplines of sociology,addressed to social behaviour on a particular terrain of social life. Sociology oflaw-the study of socialcon trol-cleals with the sine quanonof allsociology. Therest is derivative. A few of the great sociologists (in particular, Durkheim andHomans) were more or lessexplicitly awareof this. But in light of the aboveargument it is peculiar that sociology of law is mostly institutionalized in faculties oftaw,where it isa r ~ n sub)ectwekomed., i at all,as a source ofinformation thatcan be incorporated into legal arguments. There where it belongs to the very core ofthe discipline, in sociology departments, it is almost never present and there seemsgenerally to beverylittleawareness ofwhat it isabour.P

This chapter is not about social control itself, but in light of the central placethe concep t occupies in my argument, I do feel obliged to address a few words towhat it is I have inmin d. I begin, as sociology dassicaI1y does, with the probl em of

11 This conc eption of sociology owes much to G.F. Hornans, The Human Group (New York.1950). In the modern sociology oflaw the technical term semi-autonomous social field is often usedto denote the groups within which the regulation of behaviour (social control) takes place (see]. Griffiths. The Social Working of Legal Rules (2003) 48 Journal ofLegal Pluralism I); the termderives from S.F. Moore, Law and Social Change. The Semi-Autonomous Social Field as anAppropriate Subject of Study (1973) 7 LawandSociny view 7 19.

12 Historically, the situation has perhaps been better among anthropologists, many of whom haveunderstoo d why social control/law is crucial to most of what they are interested in.

TheIdea ofSociologyofLaw anditsRelation to awandtoSociologysocialorder ; how is human socialbehaviour possible? If theworldwerein astate ofnature and human beings were rational actors each pursuing his own immed iatepreferences, life woul d indeed be solitary, poor, nasty, brutish and short .13Individual choice must be limited if he coordinated behaviour necessary to sociallife is to be possible. 14 The characteristically human way of producing order insocialbehaviouris bysubjectingit to rules. Socialcontrol is the enterprise of subjecting human behaviour to the governance of rules ,ls But to avoid mi sunderstanding I emphasize once again that in allbut the most extreme of situations it ismostly an enterpriseof,by and forthe members of agroup, largelyundifferentiatedfrom their interactionswith one anotherin the course of the affairsof grouplife.As Moore argues,16 it is social groups that are the social locus of rule-creation,rule-learning, rule-following, and of the social disapprobation required to supportrule-following. Some of hese social groups are known as states and their rules aslaw , a form of socialcontrolsoelaborated that it consists not only of rules, but alsoof rules about rules, ? and even of rules abo ut rules abou t rules (as in the case aconstitutional ruleth at limits the authority of a legislature to create or modify rules).

LawWehavenow arrived atthe second of the two concepts that the expression sociologyoflaw conjoins, namely law .

The Relationship between Law and Social ControlThe Iadt kroflawhasno top ndno bottom.18The common element in the various manifestations of aw-rules, institutions,processes, and so fonh-is that there issomething legal about allof them. Fromthe simplest rule to the most complex instituti on and the legal system as a whole,they apparently share something that distinguishes them from related butnon- legal forms of social conrrol, The internal perspective of the lawyerhas noproblem here. With the ease of Baron von M tinchhausen legal scholarship raiseslaw up our of the dismal swamp of social control by pulling on its own hair: law is

13 Hobbes, n.S, above, 82.14 The problem of social order has a long and distinguished history in social thought, romHobbes (ibid,87) to Homans (n.Ll, above),The impossibiliry that social goods can beaccounted forin terms of self-interested rational choice wasfamously demonstrated byG. Hardin, The Tragedy ofthe Commons (1968) 162 Scimce 1243. See also ]. Griffiths, Normative and Rational ChoiceAccounts of Human Social Behavior (1995) 2 European Journal ofLawandEconomics 285 (criticismof Coleman s idea that norm s can arise out of rational choice).15 ParaphrasingL Fuller,TheMorality ofLaw(New Haven, 1964 ),91 (referringspecifically to law ).16 Moore, n.l l , above.17 SeeH.LA. Hart, TheConcept ofIau: (Oxford, 1961); if P Bohannan, The Differing Realms

of the Law (1965) 67 American Anthropologist (No. 6, Pan 2. special publication) 33.18 Bob Dylan, The lonesome death of Hattie Carroll .

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....54 John Griffithswhat lawyers, and in particular the most authoritative among them, andderivatively and to a variable degree, other members of society, consider to belaw. 19 For the internal, normative purposes of awyers and other participants inlegaldiscourse, there isnothing wrongwith this:what lawyers considertobe 'law'fixes-for the time being-the boundariesof a categorythat isthe keystoneofanimportant social practice.But the conceptoflaw, so conceived, isnot descriptiveofsocialreality. It reflects a particularpoliticalconsensusthat ishighlycontingent,a factthat reveals itselfanewafterevery coup d etat or revolution.wSociologyoflaw hasknowna longtraditionofattemptsto definelawin termsthatarenot reflective of themoraland political preoccupationsof lawyers andthatcanmeet the demandsof sociological theory. In the box below I list a few of the betterknownproductsof thistradition.s Noneofthemissatisfactory, and thewholeenterprisehaslongsincecometo seemlikeawild-goose chase. Aquarterofa centuryago IRichard Abeldrewfrom thisconceptual historythe pessimistic conclusion that 'for Ithe timebeing, at least, itseems clear thatwemust displace lawfromthecentreofourconceptual focus asweattemptto buildsocial theory'22 Hisdespair isagoodplacetobegin,butI intendto cometoprecisely theoppositeconclusion.

9 Cj T. Eckhoffand N. Christie, 'Studieorganisasjon og sosial integrering' ]ussms Vmner(1967)No.4, 89, for an account of how me Baron von Miinchhausen operation works in legal education.H.LA Hart's 'sociological' approach to me concept oflaw (n.17, above) treats 'law' as what me 'ruleof recognition'accepted among legal officialsidentifies aslaw.

20 Despite all me efforts of legal positivists in the tradition of John Austin to define 'law' asa descriptive concept, even legal practice is forced from time to time to confront me essentiallrpolitical/normative character of me internal concept oflaw, for example in me case of me UnilateralDeclaration ofIndependence by Ian Smim's regime in Soumern Rhodesia (see Reg v.Ndhlovu, 1968(4) SA 515 (Rhodesia, Appellate Division). The debate among legal philosophers on me questionwhemer Nazi law was 'really' law (see H.L.A. Hart. Positivism and me Separation of Law and Morals'(1958) 71 Harvard Law&view 593; L. Fuller, 'Positivism and Fiddity to Law-A Reply to ProfessorHart' (1958) 71 Harvard Law Review 630) derives its enduring attraction /Tom me failure todistinguish me descriptive and me evaluative uses of me word law.

21 Sources for me examples in me box: E. Ehrlich, FundammtaJ Principles o f t h ~ Sociology ofLaw(transl. WL. Moll, Cambridge, MA, 1936), 24; M. Weber. Maxweber onEconomy andSociny (transl.E. Shils and M. Rheinstein, New York, 1954). 5; B. Malinowski, Crime and Custom in a l J a g ~ Society(London, 1926), 55; A.R. Radcliffe-Brown, 'P rimitive Law', in A.R. Radcliffe-Brown, Structurr andFunction in Primitive Society (New York, 1933), 212): K.N. llewellyn and E.A. Hoebc1, T ~ ChrymM Way: Conflict and Case Law in Primitive ]urisprudmu (Norman, OK, 1940.23,283-5;R. Pound, Social COr/frol Through Law (Camden, NJ, 1942), 25; Hoebc1, n.12, above, 28: R.Schwam, 'Social Factors in me Devdopment of Legal Control: a Case Srudy of Two IsraeliSertlemenrs' (1954) 63 Ya1eLaw]ournal471; Hart, n.17. above, 91-2; P. Bohannan The DifferingRealms of me Law', in L. Nader (ed.), T h ~ Ethnography of Law (supplement to 67 AmericanAnthropologist. 1965),33,36; P. Selz.nick. Law, Society and lndustriai]ustiu (New York. 1969),7;Pospisil, n.12, above; D. Black. T h ~ B ~ h a v i o r ofLaw(New York. 1976).

Social scientific conceptions oflaw often track mose oflegal philosophers. Thus Hoebc1's definition resembles me classic legal positivist defini tion of]ohn Austin (if. Hart, n.17, above, 25): a rule oflaw is a genetal command, given bya sovereign (a person who is habituall y obeyed but does not habitually obey anomet) and supported wim threats of sanction, Bohannan's definition resembles mat ofH.LA. Hart. And Pospisil's definition resembles Holm es' classic 'realist' definit ion of Jaw: 'Theprophecies of what me courts will do in fact, and nothing more pretentious. is what I mean by melaw' (The Path of me Law' (1897) in CollmedLegalPapers (Boston, 1920). 173).

22 R. Abel, A Comparative Theory of Dispute Instirutions in Society' (1974) 8 Lawand SocietyReview 218, 224.

U 0 >-" 00-S 'E e e '0 ~ . ; = n ~ ~ t 2 ~ - o " '"3 0\>.. ... - c- ~ ~ \5'; c 0 8 ri l:l g . ~ 8 ;; e . 0 cc ~ l : ; j ::g "'" 'C 's = ;U bllc.-S .. "Ii c. = e .5 e -0 .- ~ . = E e-, ""i:J =-g . i ~ ~ : a ..a ' . . c : -u b .. S Oil =.5 c.-5 o o ~ e g :.a ~ ~ " "ae- ~ = ~ > - o ~ . ... 0 =" i l l .- &. 8.oc -; 1l .;:: '-.:: -s .s gf w U U ~ . - 0 " .5 '0 C . ~ ..8 .- Q. -0 '8bll ii -S .... . &. c. U 8= . s. ~ [j as 1 G c. . . -S -0 -E i -u >- 0 0 1 ' Q ~ ~ ?;-= c._ 0 -0 'O'g 2 e. c : ~ . - -S 'g.g l\l "Ii t : ._ ... l\l t s-, s "" - ~ J":U .- ::S l 0 >I u ._ ..,'"3 01 0_ I\l... ...c:.- U = "Ii .- ~ ~ :g:: = I ..E e :.au 1 8 -S .., SoU :a .... ';:;". -S -8 c:fn ~ c e : ' = o 0 bll ~ . . . . l) '0 n 1l >- &. =o ti-= .; '" ... > .J:I V .. :I 11 -e '" 0 .- a -5 .' n ]'r;)g r 0 lS E l."." -u :.: ~ u 51 '" U O ~ . c. .5'0 'C ~ - S . s - s ~ i . . s ' j 1i ..r 2 -0c: c.-S>. U 0 i ?;- ss I -e e_ .., = 1! Sl"on :':'- '" e ?i 0= '0 b l l ~ ..2...c:U U iJ = 11 l li. -a ~ ~ ~ . ~ 'f So ::s ;] ;;l 0 .;:: ~ : ~ g 81l o 11 .... 0 :;'60.g ".5:.a li.Q. ~ . . 9 0 ; = i:'n>l >I -6,'F... I T ~ . l -S 1l 'C 2 S,.-o U K . - S ~ : . : > ~ t 1 .'" '" .. . -:.a; -S .... :< g ; ~ :< = '0 '" 2 l\l 'iii.~ ; . . 8 o - s S . ~ ~ e.o 8.:; .- -c.E1 u 8 ..... 05 oi- ] .5 :; ..s S '> ] -Su'2 C " \;j e e... ::I rot >.. t: ce w . ~ ~ g 1 j] tf O l e ~ u > - ~ . . c '0 e 1l -S 1O'.l:! :SU 0.. a ' ia 0 bll:.: .., 0 9-s OJ n] .g >I.... u>-c.'"=" .. "';;I, " '-=l" ' :bl \ l0 U" 2f '0 c.5 = = ; . . . ~ -S '2 1i ..g 1l ib bll ",u"'="-S .. =.- b .5.5 l 0 0 .. u ~ = ll" .. == 0._ ... " -S .- 8 = ~ g l u- "9 tl -S = >- &. ';::' 'T'l a.... - l;l Ii - H ~ O l 01 c. c . ,

vo :: . ~ a w e -0 bll C. .Q.. . . .- a=&.V,) ~ o V, u w .... 1 ..Y-::t 0 e ~" -S'o ~ : ; = = ~ o . =l\ l o ~ E. ~ . ~ .. J >. 01 V) 8 'e e:o:.: oS =~ . . . c : 0 .... u .- .51.. = . : ; : O,.d '0 11 () 0 g 3 . ~ -0 ' ' ' nt-< g =1 = " ." '5 ~ .0 ~ 3 ti v, .. 01 -0 8 , , "0 ..c .... o . ~ :; -S . ~ . '0':;: .. .: l 8= . ~ -u Sl:a bll . _ .2 ~ ~ ~ ~ g ~ 1 =< .. jo . "j::- j ~ . 5 j j 'j j:; ~ i > lita .:. 3 ::: "\ -.: Ii s i" I i -Q t ~ ~ - . : ~ ~ :l

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56 JohnGriffithsAmong other things, the examples in the box show that l w is generally looked

upon, for empirical purposes, as a sub-set of a more general and fundamental socialphenomenon: a spe ies ofa more encompassinggenus.23 Allsuch conceptionsof lawasa particularspeciesofan encompassinggenuswe canc ll taxonomic conceptions:theymimic theway livingthingsare grouped and distinguished in taxonomic biologyAlthough other genuses are conceivable, most taxonomic definitions oflaw forempirical purposes treat it as a sub-set of social control. 4Within that encompassing genus, law is identified by means of one or another distinguishing characteristic: the state, power, authority, and so forth. For Black, law is governmentalsocialcontrol. For Schwartz, legalcontro l is specialized social control. ForHan, asocial group has law if its primary rules of social control are combined withsecondary rules abou t rules . In wh at follows I shall limit the discussion oftaxonomic definitions oflaw to the social control variant. Th is is because, in lightof what I said earlier about the constitutive importance of social control forsociology, social control seems to me the most pr omising general category withinwhich to try to locate law for sociological purposes. If succeed in doing so, I willhave located the sociology oflaw in the very heartland of sociology.But first I have to dispose of the whole taxonomic approach. The defects ofSchwartz s con cept of law are characteristic of that approach, so I will use hisdeservedly famous article on social control in two Israeli agricultural settlementss>to make my point. For Sch wam, law is social control delegated to specialists.Schwartz seeks to unde rstand why such delegated social control emerged in one ofthe two settlements and not in the other. The core of his argument can be summar ized in terms of the idea of relational distance: delegated social control-'law'-isassociated with increasing relational distance. The fact that one settlement hadlaw can be explained as the result of he fact that its socio-economic organizationwas such that the inhabitants had fewer overlapping social relationships with, andwere generally less dependent on, one another than in the settlement that did nothave law . Schwartz s analysis is convincing and made especially plausible by thefact that many ot her researchers, in widely varying contexts, and with regard to different manifestations oflaw, have come to essentially the same conclusion. For present purposes it is enough to refer to but one example: Macaulay s equally famousstudy of he extent to which business interactions are regulated by law or by informal socialcontrol.26 Here, too, relational distanceseemsto be the criticalvariable.

23 Cf Han, n.17, above.24 Other overall categories suggested from time to time in the literature are rules, morality, andpolitics. The distinguishing criteria are more or less the same as in the case of social control. Thus

someone might define law as morality enforced bythe state. Someone else might define it as politicaldecisions made by applying rules. Treating law as a species of social control has the advantage overthese other possibilities that allof the manifestations oflaw are covered.25 Schwartz, n.21, above.26 S. Macaulay, Non-cont ractua l Relations in Business: a Prelimin ary Study (19 63) 28 AmericanSocWlogicaJ view 55. also H. Todd, L itigious Marginals. Character and Disputing in a BavarianVillage , in L. Nader and H. Todd (eds), TbeDisputing Procas-i-Laso in Ten Societies (New York,

1978),86.

TheIdea Sodology LawanditsRelation toLawandtoSociology 57Nevertheless,thereis aserious problem atthe heart of Schwartz sanalysis an d it

derives from his taxonomic conception of law. It is simply not true that whatSchwartz calls specialization 27 in social control only existed in the s ettlemen t hecharacterizes as having law . That settlement did possess the differentiated adjudicatory institution that had particularly attracted his attention-a JudicialCommittee charged with settling disputes--but Schwartz s own account makesplain that the other settlement also knew considerable differentiation in socialcontrol. It may have been less highly visible than in the first settlement, but therewas differentiation in legislation, adjudication and sanctioning. On Schwartz sown definition there was thus law in both settlements. The difference for whichhe sought an explanation was, in Schwartz s conceptual terms, non-ex istent.

For anyone who is familiar with Schwartz s article, such a conclusionthat the difference that he observed berween the twO settlements, and for whichhe offered a plausible explanation, did not exist-will seem absurd. The problemis that Schwartz was unwittingly imprisoned in the fundamental assumption ofthe taxonomic approach, namely that the relationship between law and socialcontrol is one of sub-set to set and that the characteristic which defines the sub-sethasa distinctnumber ofvalues, in this caserwO:28differentiatedor not-differentiated. In fact, however, differentiation-like most (if not all) social variables2variescontinuously. It is like temperature (and not like sex): physical objects do notfall into two categories, hot or cold , depend ing on whether they possess somecharacteristic that is either present or not; they can be continuously warmer orcolder.Schwartzshould havetried to explainwhy socialcontrol was more differentiated in one settlement than in the other. It might seem a mere quibble, but infact the choice for a continuous variable to describe the relationship between law

27 Differentiat ion is a better term and I shall use it from here on. It is better because it refers t theinstitutionalizationof distinctsocialrolesand not to the allocation of naturalpersons over those roles(nor to the capacities required for performing them). A role, such as member of the general assemblyof one of Schwam's settlements, can be highly differentiated (as in fact it was, no one being able tocarry it out except in nanowly defined circumstances) but not specialized at all (every member of thegroup being entitled to perform it together with all the others).

28 All taxonomic concepts oflaw of which I am aware assume two. It would make lime differenceto myargument if there were more than two.29 The formulation of theoretical propositions in terms of discontinuous variables (taxonom

ically-defined concepts, typologies, Weberian ideal types ) has a long and I believe dismal history inthe social sciences, among them sociology oflaw. It leads in general to feeble or untenable theory. Ihave long intended to write an article that in this respect it is Durkheim and not Weber who shouldbe taken as the patron saint of sociology oflaw.) Thus Black (n.21, above), whose independent variables (stratification, relational distance, etc) are all admirably continuous, defines his dependent variable law in taxonomic terms (social control by the state) and goes on to disting uish four disti nctstyles oflaw. Macaulay (n.26, above), who makes an important contribution to empirical theory byabandoning the taxonomic distinction between contrac tual and non-contrac tual obli gations nevertheless falls into the taxonomic trap by distinguishi ng legal from non-legal sanctions. The socialrelations that affect the mobilization oflaw were for a long time conceived taxonomically (simplex'and multiplex relarions-s-see L. Nader and H.E Todd, Introduction , in TheDisputing Prousr--LaU in Ten Societies (New York, 1978) until Black introduced the continuous variable relationaldistance . And so forth. The problems that a taxonomic concept oflaw poses for the formulation ofgood theory plague these other cases as well.

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58 John riffithsand the rest of social control has profound consequences in both theory andresearch.e?

The relationship between law and social control can be conceptualized in abetter way.All the distinguishing criteria that the taxono mic approach to the concept oflaw has produced suffer from the same problem: they do not define sub-setsof social control but roughly indicate various points on a continuous dimension ofdifferentiation in social control (see the figure on the following page). The authorsconcerned call social control 'law' ifit is at least as differentiated as the point on thecontinuum that their conception oflaw requires.>' But instead of asking When isthere enough differentiation to call socialcontrol "legal"?'it would bebetter to besatisfiedwith noting the fact that allsocialcontr ol is more orl ss differentiated. Ona scalebetween two analytic poles--the absolute-zero point of differentiation andthe point of infinitely great differentiation-we can locate any particular observedsiruation.PWewillseekthen to understand, not what it is that produces supposedlytheoretically different sorts of social control, but whataccounts fordifferent positionsona dimension continuous variation in sodacontroL33

30 Some funher objections ro 'raxonomic' definitionsoflaw are:1. After more than a century of effort. there is still no sign of any consensus on what the propertaxonomic criterion might be.2. On the continuum ofincreasing differentiation there are no inherent break-points (comparableto the freezing and boiling points of water) that one could choose to distinguish law from the rest ofsocialcontrol. The choice ofany particular point isthus arbitrary.In practice,what isconcealed behindan apparently arbitrary choice for a particular level of differentiation is an author's ethnocentricpreferenceforwhat iscalled 'law'in hisown society.(Herein undoubtedlyliesthe keyto thequestionwhyso manysociologistsof lawseem incapable ofrelinquishinga taxonomicconcept of law,oreven ofrecognizing the problems to which it gives rise. On the ideologically sensitive matter of 'law' they

remain unrdlecringly trapped within the internal perspective and irs fundamental need to distinguishthat which in their culture is considered 'law' from 'morality' , politics', 'social control', and so fonh.)3. All taxonomic conceptions oflaw are at once over-and under-inclusive. Observations close t buton opposite sides of the line that separates law' from the rest of socialcontrol have more in co mmon witheach other than either of hem has with observations that lie on the same side but much farther apart.Using Schwartz'sconception oflaw, one of hissettlements shared 'law' with the Israeli state whereas theother shared informal social control' with the family and allsorts offleetingor amorphous socialgroups.But everyonewho has read Schwartz will protest that the two settlements had much more in common intheirsocialcontrolthan either of them hadwith suchdistantrdativesthat happen to fall onthe samesideofan arbitrarytaxonomicdividingline.Introduction ofsuchan arbitrarydichotomyinto thefundamentalconceptual apparatus of sociology of law dooms powerful theorizing from the start.31 The f u:t that we Can construct such a scale means it is in principle possible to reinterpret thework of sociologists oflaw who have useddiffering raxonomic conceptions oflaw n a waythat makes

their theories compatible and their findings commensurable. In this way, the ideal of cumulation ofknowledge comes within reach.32 Such a continuous scale also makes it easier to recognize that not all social control commonlyassociated with a particular point on the scale-for example, the state-is in fact at the same level ofdifferentiation. Nor is allsocial control by the Slatemore differentiated than some forms of non-statesocial control. There is of course no reason at all why all of the social control of the state should beequally differentiated and occupy a unique point on the scale, but the taxonomic approach makes it

difficult to acknowledge and to deal theoretically with such an idea. See, for example, Macaulay (n.26,above), who despite his admirably non-raxonornic approach to the concept of 'contract' neverthelessseemsto assumet hat 'legalsanctions' forbreach referstosome theoreticallydistinct type of sanction.H I firstdeveloped this ideain J.Griffiths, The Division ofLaborin SocialControl',in D. Black(ed.), Toward a eneral Theory Social o n T O ~ Vol. I {Orlando, FL, 1984),37.

TheIdea Sociology awanditsRelation to awandtsocial differentiatedenforcement institutions

0 1 r ~ ! +Malinowski Llewellyn Bohannan Radcliffe

& Hoebel Hart PoundPospisil Schwartz BlackWeber

Taxonomic conceptions oflawon a scale of ncreasing differentiation i

The most important conclusion of this discussion is that fosociologyof lawwe should not try to define 'law' as a distinct typ'Law' SOconceived is a concept that belongs to the internal point oofviewof lawyerswho to do their work must distinguish'legal' frotions such as morality and politics. For external, empirical purposto treat socialcontrolas the fundamental object of study, with coin the extent of differentiation therein as a key variable.Sociologthe study of social control and of differentiation therein and inlikes---ofthe more highly differentiated forms ofsocial control.Pt

The foregoing exercise is not merely, in the pejorative senseoretical'. An empirical concept oflaw that assumes that the rellaw and the rest of social control is a continuous one does not dsocialrealityinvolved, as the example of Schwam shows, in theous typologies. t therefore opens the way to the formulation oical theory that does not require dhoc (hence theoretically arbfor allof the myriad 'special', 'exceptional'cases that clutter thephilosophy and in sociology and anthropology oflaw. It permithe 'relational distance' proposition-latent, at least, in a greatture in sociology oflaw-as one between two co ntinuo us variabtance on the one hand, and the degree of differentiation in soc

34 The emphasis here on differentiation corresponds to the central idea inabove) philosophical analysis of he concept of aw: that law can be distingusocial control by the fact that it consists both of primary rules' that regualre so'secondary rules' that prescribe how to do things with rules (recognition, creatipretation and application). The secondary rules-and in particular the 'rule determines what counts as law --constitute and regulate the behaviour of socThe only change needed in H.LA. Hart's theory to accommodate it to the argthat differentiation is a matter of continuous variation. In that case, the objehave to becalled, in non-taxonomic terms, not the 'concept oflaw' but the 'coously variable) legal'. The greater the differentiation constituted by secondary the social control.

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60 61ohn Griffithsother. That proposition then explains not just one supposedly fundamentaldichotomy (between 'law' andthe rest of socialcontrol) but awhole rangeofgradual differences in the degree of differentiation in social control-

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6 John GriffithsThe normativeheterogeneity so prominently characteristic of the complex societiesof the modern world has long been appa rent to anthropologists oflaw. They haveassumed that one cannot understand any of the varieties of legal behaviour unlessone takes account of the legally pluralistic context wi thin wh ich it occurs. Thisapplies to the emergence and life histories of disputes, the commission and reportingof crimes , the use made oflegalfacilities such asthose of the welfare state, thesocial working of legislation, and so forth. This theoretical insight from legalanthropolog y has in recent years gradually begun to influence sociology oflaw, forexample in connection with the s tudy o flegal effectiveness.42

However, while appreciating the importanc eoflegal heterogeneity,the study oflegal pluralism remained for a long time taxonomic in its approach. State law wascontrasted with customary or tribal or local or traditional or folk law, andconceived of as a different, if related, sort of hing. In recent years it has becomewidely accepted that distinctions between supposedly different typesoflaw can beimportant for lawyers and sometimes afford a conv enient descriptive vocabulary,but that they serve no useful theoretical purpose.

What s n a Name?Law only lawifi: labe/led law.43The considerations we have been exploring-the objections for sociologicalpurposes to a taxonomic concept oflaw, and the importance in sociology oflawofthe related idea of legal pluralism-lead to the conclusion that the word law ascommonly defined is a folk concept of lawyers, belonging to the ir internal pointof view, and, because of its connections to the normative preoccupations oflawyers, unsuitable for empirical purposes.vt

In principle one could react with Humpty Dumpty to the problem ofdefinition: 'When I use a word, it means just what I choose it to mean-neitherK. von Benda-Beckmann and F Strijbosch (eds), Anthropology LawintheNetherlands: ays onLegal Pluralism (Dordrechr, 1986), 67-89) have similarly called attention to the fact that legal centralismstands in theway of the developmentof asociological approach to law.

42 See Griffiths, n.II, above. See also ]. Griffiths, The General Theory of Litigation-A FirstStep (I 983) 5 ZeitschriftfUrRLchtssoziologie 145, on the study ofdispute processes.

H Recht is aileen recht als er recht op staat (R Pieterrnan, Contextu ele Rechtsgeschiedenis vande Negentiende Eeuw [Contextual Legal History of the Nineteenth Century], in C.H.]. Jansen,E. Poortingaand T.]. Veen (eds), Twaa/fBijdragen tot de Studie van de chtsges.:hiedenis van deNegentiende Eeuia [Twelve Contributions to the Study of the Legal History of the NineteenthCentury] (Amsterdam, 1993), 132)-borrowed from the advertisement for Rang (a sort of candysold in a roll, like life-savers): Rang is aileen Rang alser Rang op staat , Compare Baron von Munchhausens approach to the concept oflaw (see text at n.19 above).44 Considered from Ha rt s moderate external perspective , it is an important fact of their

social control system that participants call certain forms of social control law and attac h specialsignificance to that label, This does not justil)r the conclusion--on the contrary, it excludes theconclusion-that their internal conc ept law is suitable for the external, empirical, and comparativepurposesof sociology oflaw.

TheIdea Sociology LawanditsRelation toLawandtoSmore nor ess.'4S If Black, for example, chooses to define law asocial control , then it is just silly to criticize his theory oflaw becapplyto the things that dictionaries, lawyers, and the man in the slaw .A fewyearsagoI decidedto take advantageof the freedom toof the considerations discussed above, I proposed that law shoulthe nameof a dimension ofvaciation in social control: dependingdifferentiation, social control would be described as more or leproposal required the use of ungai nly expressions such as legalimportantly, it encountered the withering criticism of my late covan den Bergh that the words law and legal cannot be stipulatheir associations with normative ideas about justice and legality.expression from the philosopher John Austin, law is a word thaclouds of etymology . Its associative history cannot be shuckegiving the word a different formal definition.

In the intervening years, further reflection on the concept oflawthe conclusion that the word law could better be abandoned altposes of theoryformation in sociologyof law.49Sociology of law ply considered the study of social c ontrol, with differentiation a k

Nevertheless, one must make concessions to practicality. A sowho seeks to communic ate with lawyers and lay people about whatnot easily avoid using words like law , legal and legal pluralismanythingwrongwith payingspecialattention to phenomenathat asame levelof differentiation in socialcon trol, nor with referringtoena collectively as law or even using the word law asparsprototo fat all different levels of differentiation (as in the expressions sociolegal pluralism ). The argument here is not about linguistic pamount ofopportunistic sloppiness from time to time can e unavorefreshing, but when one chooses for good reasons to express oneshould e aware of what one is doing and of the risks involved.terms should e resolutely banned from the professional core of stheory formation.

Conclusion: The age-old problem of a concept of law suitabpurposes can be solved by no longer considering law the theoreti

45 L Carroll, Thruugh theLooking-Glass andWhatAliceFoundThere (London.46 Grif:liths, n.33. above.47 G. van den Bergh. Over een Theor ie van Sociale Control e en het Meten v

Theory of Social Control and the Measuring of Law] (I986) 1986/4 cht en KB. Tamanaha, J\nAnalytical Map of Social Scientific Approaches t the ConcepOxfordJournalofLegal Studies 50I.48 And on the related concept of legal pluralism , which had attracted from

similar to Van den Bergh s. SeeTamanaha, n.37, above.9 Van den Bergh chose another solution: ret aining the inevitably normat ivabandoning the ambition to study law as an empirical social phenomenon.

50 Compare Moore, n.11 , above. .

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64 John riffithssociologyoflaw. The theoretical object of sociologyoflaw issocial control. It alsofollows from the above considerations that the expression legal pluralism can andshould be reconceptualized as normative pluralism or pluralism in social control . Law is not a h e o r e t i c ~ concept in the sociology law.

Sociologyof LawThe various considerations I have been exploring lead me co the conclusion thatthe answer co the question with which I began this chapter- what is sociology oflaw? -is as follows:

Sociology oflLZw istheempirical socialscience whose objectissocial controlSuch a definition determines for sociology of aw the criteria applicable to the formulation of research questions, the concepts deployed, the research methods usedand the relevanceand weighingof evidence. In short, itestablishesthefundamentalnature of the discipline.

Lawas ependent and ndependentVariable n theSociologyofLawOne cangroup theories in sociology oflaw intothosein which socialcontrolisthedependent or the independent variable. In the first sort of heory the object is toexplain the differences between social control under differing social circumstances. If, for example, we are interested in rules of behaviour, such a theory isone of normative change: when and how do rules come into being, change, andpass away? Other manifestations of social control---di spute processes, normativedecision-making, institutions, and so forth-have also been the dependent variables in theoretical propositions. Black s theo ry of law , for example, seeks coexplain the quantity of socialcontrolin all of its manifestations.x

In thesecond group of theoriessocialcontrol isan independentvariableand thequestion is,wh at are the socialconsequences ofone or anotherofits manifestations(rules, decision-making, etc)?To what extent is social control the cause of a givensocial state of affairs, and of stability or change therein? The theory of the socialworking of rules , for example, addresses the question when, why and how peoplefollow rules.52

Most sociologists oflaw choose one or the other of the tw approaches withoutarticulating their reasons for the choice, or they swing back and forth between theone and the other without giving any sign of having reflected on what they are

51 Black, n.21, above. Classic srudies in which social control/law is the dependent variable are, forexample, Macaulay, n.26, above; Schwartz, n.21, above.52 SeeGriffiths, n.II, above.A classicsrudyin whichsocialcontrol isthe independentvariableis,for example. V Aubert, Some Social Functions of Legislation (I966) 10 cta Sociologica 99-110.f also Moore, n.l I, above.

The Idea ofSociologyofLawand itsRelation toLawandto Sociology 65doing. Some study the process of normative/legal development surroundingeuthanasia and try to explain where and when change has taken place, othersaddress themselves to the question whether legal or other rules have an influenceon medical practice, and still others attempt both. It is rare that anyone considerswhether and how these two questions are related co each other. It is worth wondering whether the result of so much indifference is that the sociology of law is asort of hotchpotch of incompatible ingredients, comparable to a textbook of geology in which theories about the origins of coal and oil are mixed up with theoriesabout the influence of hydrocarbons on social1ife,including not only heatingandtransportation but also such matters as environmental pollution, wars, and soforth.

Black isof the opinion thatsociology oflaw isindeed insuch astate. His view isthat every science is defined by its depen dent variable: what the practitioners ofthat science seek to explain. Sociology oflaw is, in his view, the science that seeksto explain variation in law and social control. The influence that social controlmay have on other things has no more place in such a science than the uses peoplemake of coal and oil have in g e o l o g y ~

Nevertheless, despite an undeniable initial appeal, I believe Black s position isuntenable. A concept of social control that takes no account ofits effects is impossible. A rule of behaviour without any effects on behaviour would be nothingmore than a bit of talk, a legal rule without effects nothing more than words onpaper. The situation is even worse than th at, since language itself is rule-governedbehaviour thatonly existsaslanguage becausethe rules concernedhaveeffectsandproduce meaning. In other words, if one takes no account whatever of he effectsof rules, then the rules themselves will be nothin g more than unintelligible noise,and social control-the subjection of behaviour to the governance of rules-willnot be an identifiable subject of study.54

53 In Black swritings, this posirion is not alwaysmade explicit. In a letter dated 14 February 1996.reacting to an early version of an article of mine (Griffiths, n.l l, above), he writes as follows:I do not believethe effectSoflaw fall within the jurisdiction of the sociology oflaw . . .I believe thar each field of sociology should be defined by the range of variation it seeks to order.i.e.irsduster ofdependent variables

[Y]our effort to indude the effects of law in the sociology of law (requires you] to takeresponsibility for everything on which law has an effect and for everything else that mig ht haveeffects on the same elements of human behaviour [such as religion, politics, recreation. etc]. Thiswould quickly expand your subject in a way thar would seem to me unmanageable. It would,among other things. rake you into the srudy of deviant behaviour and conformity. Hardly anyonenow tries to understand the sources of conformity, perhaps because they realize it would entail anunderstandingofvirtually everything people do.

For these reasons, I would not venture to comment on your paper. I would regard the likelyeffecrofanything I mightsayas acase of spirtingin the ocean.54 On the other hand, rules are not reducible to their effects on behaviour, since ir is always pos

sible to break a rule (whether it be a rule oflanguage or of other behaviour) withour thereby callingthe existence of the rule into question.

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66 John GriffithsIn short, Black's tidy solution will not work. To understand it, social control

must be studied both as a dependent and as an independent variable. The relationship between rules and their effects is a complex and reciprocal one thatshould form the heart of theory-formation in sociologyof law.

The Position of Sociology of Law in Relation to SociologyAll collective human lifeisdirectly or indirectly shaped y law. Law is, likeknowledge, anessentialandall-pervasivefict ofthehumancondition. 55Given my point of departure, that sociology is the study of human sociallife-that is, of groups--and social control the constitutive element of everygroup, it follows as I have argued earlier that the study of social control is thefundament on which the whole of sociology necessarily rests. General sociologyand medical sociology, the sociology of labour, of knowledge, of religion, andevery other sort of sociology:all of them are unthinkable without the internalsocial control of human groups.This explainsthe keyrole of socialcontrol ( law )in the work of classical sociologists like Weber, Durkheim, Malinowski, andHomans.

t follows that the relationship of the sociology of law (conceived of as thestudy of social control) to general sociology is not one of one sub-disciplineamong many to its mother discipline, asis generallysupposed, but rather that ofthe foundation to a building. Even that metaphor is not strong enough, sincesocial control is not merely the foundation on which the building of sociologyrests; it is the essential cement of every bit of the whole edifice. Humansocial life-it cannot be said often enough-is constituted by social control,which penetrates its every nook and cranny and makes possible its everymanifestation.

The Relation of Sociology of Law to Legal ScholarshipA littlesociology leads awayfromthelaw butmuchsociology leads back toit. 56Having dealt extensively with what sociology of law is and with its relation tosociology, let me now finish off with a few words on its relationship to legalscholarship.There are a number of important differencesbetween legalscholarship and anempirical social science of law. Of these, most important is the fact that, asMaitland observed, the first is driven by the logic of authority and the second bythe logic of evidence ,57 The validity ofa legal proposition is the result ofa social

55 N. Luhmann, A Sociological Theory o/Law(Boston, 1985). I.56 M. Hauriou, cited in G. Gurvitch. Sociology ofluuo(London. 1947).2.57 TheCollmedPapersofFmkric William Maitland(Cambridge, 1911), Past I. 491.

TheIdea ofSociologyofLawanditsRelation to Lawandtoproce.tf----Ca1.led legal reasoning -in which authority, power andkeyrolesandwhich resultsin nonnative agreement (or at least acccence). The validity of a legal rule is ultimately dependent on members of a legalcommunity accept it asvalid.58

Bycontrast, the truthofa scientific statement is not dependent byany group of scientists.Truth isnot theoutcome but theguidinsocial processwec llscience.59

The distinction between legal scholarship and a social scicontrol/law as its subject is not meant to imply disqualificationacademic lawyers. After all, a great deal of what is done byresearchers and teachers is not science either. If we want to c academicresearchersand teachersdo and that meetsminimal staence and cumulation, science , then we will simply need anoththe distinction I am insisting upon. The discipline I am discussiwe might then describe as an empiricalscience .

The words are not importan t. What is important is that the ponature---ofsociologyoflaw is fundamentally different from thatship. On the other hand, ultimately the two disciplines concernthe same object (although they conceptualize it differently). Theyto learnfrom eachother. I willnot concern myselfhere withwhacan learn from lawyers--in my opinion, they have a great dealthey are careful not to let their p oint of view be corrupted by thship. But I do want just to mention what it is in my view that lfrom the sociologyoflaw.

It is in the lawyer's ability to adopt different points of view in ththat the continual enrichment of legal thought resides. Amongsuch enrichment is the rediscoveryby everygeneration of lawyeance of an interdisciplinary approach to law, of giving empirnormative reasoning.w Betweenthe periods of periodic rediscooflaw lieperiods inwhich legalscholarswithdraw into dry,formtivism-what William Twiningc lls the expository style of leand Ehrlich caricatured as a more emphatic form of publicatioFortunately for legal scholarship, such periods never seem toThinking about lawwithout thinkingabout where it comesfrom

58 Cf Hast (n.17, above): Eckhoffand Christie (n.19. above).5 This iswhythe so-called forumtheory of scientific truth propagatedbyAearly formulation see his Metbodology. FQUndations ofInference andRcsearr:b in t

(The Hague, 1969 is. as an epistemological theory, unt enable, whereas as an emscientists in practice take to be the tru th) there is much to be said for it. Similarly, Kof Scientific Revolutions (Chicago. 1962 famous distincti on between normalscience isonly tenable when taken asacontribution t the sociology and not to th60 f the writings ofW. Twining. KarlLkwellyn andtbRealis Movement (Lin Context (Oxford. 1997). 61 Twining

62 Ehrlich, n.21, above, 19.

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68 John riffithsthethings that make it importantand interesting, isdreadfullydull. eg l reasoningas caricatured in the old legal-realist jibe Thinking about something that onlyhas meaningin relation to somethingelse,without thinking about the something

. else i s oo sterile to keep the mind awake for long. What lawyerscan learn fromserious sociology of aw from sociology of aw that does not disqualify itself forinterdisciplinary co-operation by snuggling up to lawyers and adopting theirinternal point ofview is how to think in a responsible and disciplined way aboutthe relationships between law and all of the something else th at gives itmeaning.