Vol. 10 No. 3 (March 2000) pp. 203-205.

JUSTICE AND POWER IN SOCIOLEGAL STUDIES by Bryant G. Garth and Austin Sarat (Editors). Evanston, IL: Northwestern University Press 1998. 336 pp.

EVERYDAY PRACTICES AND TROUBLE CASES by Austin Sarat, Marianne Constable, David Engel, Valerie Hans, Susan Lawrence (Editors). Evanston: Northwestern University Press 1998. 240 pp.

Reviewed by Brian Z. Tamanaha, School of Law, St. John's University. These first two volumes of the Fundamental Issues in Law and Society Research Series can be captured in a single word: rich. There are rich in the variety of subjects they cover, in the information they convey, and in the insights they produce. These two collections are the products of the Summer Institute in Sociolegal Studies, sponsored by the Law and Society Association. The 1992 gathering addressed the subject of Justice and Power; the 1994 gathering addressed Everyday Practices and Trouble Cases. Some of the most thoughtful and knowledgeable scholars in sociolegal studies participated in the Summer Institutes, and contributed papers to these collections. Unlike many collections, the quality of the articles in both books is consistently high, which is a tribute to the contributors and the Editors.

Given that there are a total of 23 articles in these two volumes, it is impossible to discuss each. Instead, I will focus on a number of general themes. The articles can be divided roughly into two different styles. Many of the articles are surveys of sociolegal research in the particular field they cover. These articles provide valuable overviews of the research and latest theoretical developments in various subjects, including lawyers and justice (William L. F. Felstiner), procedural justice (Tom R. Tyler, E. Allan Lind), regulation and justice (Nancy Reichman), ideology and justice (Susan S. Silbey), the criminalization of everyday life (Sally Engle Merry), the reasonable person in a pluralist society (Martha Minow and Todd Rakoff), the unreality of legal ethics (David B. Wilkins), and the reality of tort litigation (Deborah R. Hensler). Most of these articles went beyond a general survey, to draw their own conclusions and offer substantive contributions and suggestions to the research and theory in the field. The second style of article is comprised of essays that focused on making a particular argument or taking a particular position rather than on giving an overview of the subject. For example, Martha Albertson Fineman argues that ideas about justice and the family reflect predominantly male ideological views that often oppress women. Joel F. Handler describes the ways in which social welfare agencies exercise power over the poor, and makes specific suggestions on how to reduce abuses. Robert L. Kidder provides an analysis of the concept of legal pluralism. Kitty Calavita

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uses the savings and loan debacle to test the various theories about government regulation of the economy. John Brigham discusses the connections between space and architecture and the images projected by the courts, and Felipe Gutterriez discusses the competing paradigms used to examine law in everyday contexts. In the course of pressing their arguments, many of these articles, though not surveys of the subject, related the leading theories and leading empirical studies in the field.

Both kinds of articles were executed well, and the combination of the two makes the collections more interesting and easier to read. As this description indicates, the difference between the two is more a matter of style than substance. Upon completing an article, of whichever style, the reader has a sense of the latest and most interesting ideas and research findings on the subject. In addition to learning about a variety of individual subjects that occupy sociolegal scholars, one who reads these two collections will also learn about themes that run through the field of sociolegal studies. One theme in particular stands out. Whether raised explicitly, or left implicit in the choice of approach, two alternative orientations dominate current sociolegal research: the instrumental approach and the constitutive approach to law. The instrumental approach is the traditional law and society approach that sees law as an instrument of social control and social change. The constitutive approach is the more recent approach, connected to the rise of interpretivism and social constructionism, which holds that law constitutes social relations. Both approaches are interesting and informative, and can coexist as alternative theories about the relationship between law and society.

However, there is a tension between the two that is not directly confronted in the collections. Sociolegal studies have often demonstrated that law is weak as compared to other normative orders. Also, the studies show that law is often circumvented, and lay people often have a limited knowledge of the law and legal rules. This suggests that law's instrumental capacity to generate social change is often weak (see Merry's essay and Calavita's essays, for example). But the constitutive approach attributes to law a powerful ability to shape our ideas and social relations. Although these two approaches operate at different levels, and can thus be reconciled, at least superficially they point in different directions. The constitutive approach often appears to conflate other kinds of social norms with law, and often fails to keep separate the extraordinary symbolic ascendance of law as a cultural mode of discourse (novels, television series, O. J. trial) from the actual activities and influence of the state legal systems (Tamanaha 1997, Chap. 3, 4). Furthermore, the constitutive ability of law is often asserted more so than carefully demonstrated. There is no question that law itself is a social construction. The new and interesting questions raised by the constitutive approach are whether, and how, law effectively constitutes social relations at an ideological or cultural level. Whatever the case, reading these collections brings home the point that the tension between these two approaches should be more explicitly addressed (perhaps in an upcoming volume in the Series), if only because the confrontation betweenthem promises to be revealing.

Another theme appearing in these collections, often explicit in the JUSTICE AND POWER collection, and implicit in the EVERYDAY PRACTICES collection, is the

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close association between sociolegal studies and progressive politics. These collections create an overwhelming impression that sociolegal scholars are engaged in a form of leftist politics -- their research supports their politics and their politics informs their research. This widely recognized point is an observation more so than a criticism (See Tamanaha 1997, Chap. 1). It is jarring to see such an unabashed display of political views, especially when the Summer Institutes have been supported by grants from the National Science Foundation, and the Fundamental Issues in Law and Society Research Series is supported by the American Bar Foundation (funded by the often conservative American Bar Association). There are points of serious disagreement among sociolegal scholars (especially between positivists and interpretivists), but this disagreement takes place within a shared progressive view of the world. The concern this raises is that we might not be getting the entire picture. Have the studies supporting the conservative point of view been reviewed and fairly recited? Are sociolegal scholars even conducting such studies? Are conservative scholars being invited to participate in the Summer Institutes to help generate a healthy exchange of ideas? Are the Summer Institutes becoming the Law and Society Association's version of the (sociolegal academic) elite perpetuating and spreading their own view of the world? These concerns do not detract from the outstanding qualities of these two books. The articles they contain are clearly written, superbly researched and rewarding to read. Anyone who is interested in learning about the role law plays in society, as well as about a range of current work in the field of sociolegal studies on two important topics, should start with these two books.

REFERENCE:

Tamanaha, Brian Z. (1997). REALISTIC SOCIO-LEGAL THEORY: PRAGMATISM AND A

SOCIAL THEORY OF LAW. Oxford: Clarendon Press.