Vol. 5 No. 2 (February, 1995) pp. 72-74
SPECIAL ISSUE, JUDICIAL PROCESS TEXTS
Michael W. McCann, Editor
THE SOCIOLOGY OF LAW: AN INTRODUCTION (Second edition) by Roger
Cotterrell. London: Butterworths, 1992. 398 pp. paper $25.
Reviewed by Mark Kessler, Bates College
In this sophisticated text, Roger Cotterrell -- a noted British
legal theorist -- provides a creative and highly useful synthesis
of extant theory and empirical research on law and society.
Accessibly written, the text investigates and interrogates the
roles of law in society emerging from significant classical and
contemporary theories and intellectual movements (including the
works of Sumner, Savigny, Ehrlich, Weber, Marx, Durkheim,
Parsons, Llewellyn, Arnold, Pashukanis, Luhmann, Teubner, and
others). A vast and impressive range of empirical studies
conducted in Europe and the United States are summarized and
analyzed for how they may help address broad theoretical
concerns. The author urges readers to value theoretical work and
think about how sociolegal studies may address and fit into
broader concerns raised in social theory. "An understanding
of law's social effects and of the social factors that shape
it," writes Cotterrell, "requires legal theory --
theory which attempts to explain systematically the nature of
law. However, because law IS AN ASPECT OF SOCIETY, a part of a
larger social field, this theory must itself be informed by --
and a part of -- social theory." (emphasis on original, 65)
The book opens with the author's conception of sociolegal
studies. He makes a convincing argument for theory and research
that transcend the narrow disciplinary boundaries of law and/or
sociology. He then practices interdisciplinary analysis in two
chapters that examine the relationship of law to society, moving
easily from work positing a fairly strict separation to that
explicitly assessing reciprocal relations. In succeeding
chapters, Cotterrell provides unusually clear descriptions and
useful critical analyses of functionalist theories that view law
as an instrument of social integration and Marxist accounts of
law as coercive power expressing the interests of particular
groups. Throughout these chapters, the author identifies implicit
theoretical assumptions about the nature of law and society that
guide the many empirical literatures he surveys. The strengths
and weaknesses of these theoretical and empirical writings are
assessed with great skill and clarity.
Not content to write a text that simply describes diverse
perspectives, Cotterrell seeks "to advance the
literature."(x) He achieves this objective admirably by
introducing the notion of law as ideology as a way of integrating
competing approaches. Indeed, Cotterrell brilliantly draws on a
broad range of social and legal theory (including a useful
discussion of recent work in autopoiesis), as well as a
voluminous amount of empirical research, to create his own
conceptual framework based on an examination of law as ideology.
As he sees it, both functionalist and Marxist accounts of law
provide insights into law's role and relationship to society that
are partial at best. The notion that law is an ideological
formation -- that it shapes consciousness; that it contributes to
the construction of "common-sense" knowledge -- helps
to overcome limitations in both perspectives.
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If law has the capability to constitute authoritative accounts of
social relations that shape individual understandings of the
social world, it may be viewed as both an instrument of social
integration reflecting social consensus (as functionalists would
have it) and a coercive force expressing inequalities in social
relations (as Marxist and power elite theories see it). Law may
help forge the social consensus assumed by functionalists, but
the consensus may perpetuate hidden inequalities. Cotterrell's
conception of law as ideology is creatively applied to major
legal actors and institutions in three separate chapters on the
legal profession, courts and judges, and agencies of law
enforcement. These chapters seek to show how aspects of empirical
research on each topic illuminate law as ideology. For example,
Cotterrell suggests that an array of theoretically limited social
studies of courts add up to a view of courts as functioning to
construct normative order by creating and maintaining ideology.
I am reluctant to criticize a book that covers so much territory
for what it fails to discuss. But it is curious that a text
relying so heavily on the concept of legal ideology spends little
time on the work of Foucault (whose picture adorns the book's
cover, but whose ideas are only mentioned briefly in passing) or
Gramsci and ignores completely Bourdieu, Derrida, and work in
feminist jurisprudence. Cotterrell does include a short section
on postmodern jurisprudence in his concluding chapter, but it
accomplishes very little, reading like a late add-on to this
text's second edition. The author acknowledges that the best
postmodern writing "illustrates, sometimes in highly
effective ways, important characteristics of legal
rhetoric." (309) But he does not discuss which postmodern
writings do this, nor does he suggest how they accomplish this
task.
Ultimately, Cotterrell dismisses postmodernism because "most
postmodern writing on law appears to avoid all concern with
empirical study of specific social contexts of legal doctrine or
institutions, or with theory aimed directly at empirical
explanation." (309) This critique of postmodernism, emerging
from a view of social science and the place of empirical
investigation in it, illuminates one of the few areas where
Cotterrell confuses, rather than clarifies. At times, his
conception of science seems to draw from contemporary feminist
and postmodern critiques; he acknowledges, for example, that
"all perspectives on experience are necessarily partial and
incomplete." (4) At times, he seems to reject the
assumptions of positivism and embrace interpretive methodologies.
But throughout the text, one has the feeling that Cotterrell
still has at least one foot firmly planted in the positivist
camp, such as when he urges his readers to "attempt to
overcome the limitations of partial perspectives through
systematic collection, analysis, and interpretation of the
empirical data of experience." (4) This confusion is
magnified in the concluding chapter when Cotterrell seems to
argue for a sociology of law that is, first and foremost, an
ideology critique. He suggests that sociolegal studies may be put
at the service of "have nots" through "its efforts
to make its critique of law's self-images a part of everyday
understanding outside the academy and the professional world of
law." (313) But in the same section, he argues that
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sociolegal studies "must aim to interpret complexity, rather
than replicate it or hide within it; it must seek to reveal the
broadest significance of the social details it studies, to build
bridges between the legal experience of individuals and of
different social groups, to construct perspectives that connect
disparate specialized or localized knowledges." Cotterrell
goes on to critique one postmodern conception of science, arguing
that sociolegal studies "cannot be satisfied with a
'localised, particularistic, and strategic science"'...
(Cotterrell, citing Austin Sarat's "Off to Meet the
Wizard," in the 1990 LAW AND SOCIAL INQUIRY). Since many
contemporary feminist and postmodern writers view science in much
the same way as Cotterrell views law -- as an ideological
formation that constructs powerful and authoritative accounts of
social life -- the author is obliged to provide a more detailed
justification for his position, one that squares his view of law
with his view of science.
Despite these reservations, I highly recommend this text for
advanced undergraduate and graduate courses in law and society.
The book is more sophisticated theoretically than any other book
of its kind of which I am aware, is extraordinarily well written,
and for the most part is convincingly argued. It is by no means
an easy read, however. Students will need to work hard to master
its details, but they will be richly rewarded for having done so.
This text promises to teach students to ask important questions
about law and society. It shows how a creative mind can employ
narrowly focused empirical research to address fundamental
questions. And, finally, it suggests future research directions
that may be mined fruitfully by students and faculty alike.