Volume 1, No. 8 (October, 1991), pp. 114-117

SOCIAL STRUCTURE AND LAW: THEORETICAL AND EMPIRICAL PERSPECTIVES by William M. Evan. New York: Sage Publications, 1990. 270 pp. Cloth $36.00. Paper $17.95.

Reviewed by Kim Lane Scheppele, Department of Political Science, University of Michigan

Appreciating William Evan's new book requires a bit of sociological imagination. You have to imagine that the year is 1965 rather than two and a half decades later. Had the book appeared then, I'm sure it would have been greeted with rave reviews. But because the book appears now, it's likely to be met with all the enthusiasm afforded a guest who has arrived after the party is over. Evan develops a systems-analysis structural-functionalist theory of law that incorporates a "general covering law" picture of theory development and that uses for empirical tests data that range from a decade to four decades old presented as if they were either timeless or current. Still, the ambition of the work and the range of the examples used indicate that William Evan has no small aim in mind. He claims to develop a general sociological theory of law.

As Thomas Kuhn (whom Evan cites on occasion) was discovering as the 1960s ended, what counts as a persuasive theory has more to do with the historical context in which the theory is forward- ed than with whether the theory gets anything in particular right. The decade of the 1990s is the wrong historical moment for Evan's book to appear. However, in order to read it sympa- thetically, it might help to see where the book fits in the development of social theory and the development of the disci- pline of sociology.

Imagine that it's America in the mid-1960s, and sociology is firmly in the grips of the functionalists.Theoretical diversity can be measured in the space between Robert Merton and Talcott Parsons. If you can picture William Evan's book being published in this context, then its contribution would be clear and impres- sive. By combining Parsonsian-style systems theory at a grand scale with Mertonian structuralism and role theory at the inter- mediate and micro levels, Evan constructs an elaborate conceptual scheme for analyzing many disparate features of legal systems and legal institutions. Within this tradition of competing functionalisms, this is a major synthetic effort.

First, Evan situates law as one institution among many in a society, one that has "inter-institutional relations" with economic, political, familial, religious, educational and scien- tific/technological institutions. These relations are mapped in a large typology. He argues that every institution, legal ones in particular, must have a system of values, some of which may be in conflict. Then he brings in norms, which every institution must also possess, and he provides an extensive list of the dimensions along which norms can vary.(For example, they can vary in the degree of knowledge people have of them, in the degree of value consensus they generate, in the degree of normative com- plexity, and so on.) Each of these dimensions has a potential interaction with each of the others.

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Then, enter the people. He brings in legal personnel,operating in roles, and he considers their relationship to non-legal personnel, also operating in roles. These people constitute the building blocks of legal and nonlegal organiza- tions (which interact). Administrative law, in Evan's view, provides an important framework within which organizations behave (though none of Evan's references on administrative law except to himself are more recent than 1974.)

From the organizational level, we then move to the institu- tional level, where Evan wants to divide all legal systems into public and private, democratic and nondemocratic. A public legal system has its "locus" in constitutional or administrative law while a private law system has its "locus" in contract or corpo- rate law. (Just what one should do with a legal system,like the American one, that is well-developed along both dimensions isn't clear.) Democratic systems are characterized by separation of powers (just what would the British think here?),procedural due process, and consent of the governed. Non-democratic systems are not. These two dimensions can cross-cut,yielding public-democratic, private-democratic -- and, well, you can fill in the other cells of the four-fold table.

We are now ready for the empirical tests of this giant conceptual framework. In separate chapters the empirical tests include analyses of: labor arbitration decisions (with all data and references from the 1940s and 1950s); legal indicators studies (where the historical context is unclear unless one assumes that the data were collected at the same time as the footnotes stopped in the mid-1960s); measurements of compliance with international human rights conventions (where third world countries are found to be less likely to ratify human rights agreements than either first or second world countries -- but since no dates are given for treaties or ratifications, we can't tell whether these countries never ratify the treaties or are simply slower in getting around to it). Theory-testing here involves using the special terminology previously developed in the book to describe empirical events, which can then be located in their proper places on the various charts.

The book ends with a very complicated flow chart of a systems-theory model (complete with feedback loops) that maps the interrelationship between legal and nonlegal spheres. Although Evan admits that the model is "admittedly much too complicated in its array of variables and functional relationships for any direct empirical test," he closes with an exhortation to the legal sociologist to gather more data.

Now, what is wrong with this picture?

For one, this book lives in an intellectual world that has no place for legal interpretation, hermeneutics or the analysis of discourse, rhetoric or social constructions. The book does not take into account symbolic interaction, interpretive sociolo- gy, feminism, Marxism or developments in comparative-historical sociology in the last 20 years nor does it recognize that almost everywhere else

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functionalism has gone into hiding. The book shows no influence of developments in the philosophy of social science that chal- lenge the picture of the researcher as a neutral observer with no history or culture of her own. The book by and large does not take note of the contributions to the comparative analysis of legal systems made by the law and society movement, anthropology, political science or the empirically or theoretically inclined parts of the law school world in the last 20 years (with the exception of a small section on critical legal studies which does not influence the larger analysis). In the time between the heyday of functionalism in sociology and the publication of this book, the intellectual world has heaved and cracked all around this way of doing social science.

This does not mean that functionalist approaches are neces- sarily useless in the 1990s. Gunther Teubner and Niklas Luhmann, whom Evan cites in his introductory chapter, have been engaged in a revival of functionalist theorizing that shows some promise. Outside the world of theory, events in Eastern Europe and in the Soviet Union should remind us that how social institutions generally, and legal institutions in particular,maintain their stability in the face of impending disorder is of crucial impor- tance. Functionalism provided a systematic way to think both about system maintenance in complex social orders and about value consensus, both crucial issues in the emerging democracies of the East.

But whatever the merits of the case for rethinking the advantages of structural functionalism, those arguments need to be made explicitly. SOCIAL STRUCTURE AND LAW doesn't make those arguments, or show why functionalism ought to be taken seriously in the 1990s. By presenting timeless, placeless data in a context of grand abstraction, Evan's book does more to remind us of why functionalism died than of why it might be reborn.

One final point. An aggressive editor could have helped this book a great deal. No author should be allowed block quotes that are more than a page long. An editor could have smoothed out the sporadic updates of previously published work that merely serve to emphasize the dated quality of the account. For exam- ple, in one chapter, Evan tells the story of the J.P. Stevens "conflict," inexplicably ending the narrative in 1978. A foot- note tells us that the matter was finally resolved in 1980.If there was room to add a footnote, why wasn't there room to update the text itself so that the story would not be left hanging? An editor could have insisted that all the tables be labelled with dates and places to indicate when or where the data were collect- ed. As the book stands, the reader often has to infer from the references in the bibliography what decade and what range of countries might be represented in the tables and the text. A skillful editor could have cut through these annoyances to let the argument get through.

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Evan's book draws from an impressive array of empirical sites and addresses itself to general sociology, rather than to the law field in sociology or political science. It is grand and ambitious, rather than narrow and specialized. But the book feels more like a hit from the oldies charts than like a contri- bution to today's theory scene.